Collins v. Milliman Inc

1 HONORABLE RICHARD A. JONES — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — — 8 — 9 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 10 AT SEATTLE 11 STEVE COLLINS, an individual, 12 Plaintiff, Case No. 2:22-cv-00061-RAJ 13 v. ORDER — 14 — MILLIMAN, INC., — 15 — Defendant. — 16 — 17 I. INTRODUCTION 18 This matter is before the Court sua sponte regarding issues raised in the parties’ 19 trial briefs. Dkt. ## 77, 80. The Court rules as follows on the scope of damages and 20 evidence regarding Milliman’s reinvestigation. 21 II. DISCUSSION A. Damages — 22 — Milliman claims that Plaintiff intends to pursue liability under §1681o (negligent — 23 — violation of FCRA) and §1681n (willful violation of the FCRA) for the same conduct — 24 — (i.e., Milliman’s alleged failure to follow reasonable procedures). Milliman contends that — 25 — (1) Plaintiff may seek statutory damages or actual damages, not both, and that (2) — 26 — Plaintiff must be limited to statutory damages for failure to demonstrate actual damages. — 27 — Under the FCRA, a plaintiff is entitled to recover damages based on whether the — 1 — violation is negligent or willful. A negligent violation of the FCRA entitles a plaintiff to — 2 — recover actual damages, as well as the costs of the action and reasonable attorneys’ fees. — 3 — See 15 U.S.C. § 1681o. For a willful violation, however, a consumer may recover either — 4 — actual damages or statutory damages ranging from $100 to $1,000, punitive damages, and — 5 — attorney’s fees and costs. 15 U.S.C. § 1681n. — 6 — The Court agrees with Milliman that Plaintiff cannot recover twice for the same — 7 — conduct – he can recover either for a negligent violation or a willful violation of section — 8 — 1681e(b). See Moran v. Screening Pros, LLC, 25 F.4th 722, 725 (9th Cir. 2022) (“Under — 9 — the FCRA, a CRA, such as Defendant, is liable to a consumer, like Plaintiff, for either — 10 — the negligent or willful failure to comply with any requirement under the FCRA with — 11 — respect to that consumer.”) (emphasis added). — 12 — However, the Court disagrees that Plaintiff is simply limited to statutory damages. — 13 — First, a willful violation allows for either actual damages or statutory damages. 15 U.S.C. — 14 — § 1681n. Second, any unfavorable outcome from a consumer reporting error, whether it — 15 — be economic or non-economic, is sufficient to demonstrate harm for purposes of an — 16 — FCRA inaccuracy claim. Dennis v. BEH-1, LLC, 520 F.3d 1066, 1069 (9th Cir. 2008). — 17 — Accordingly, Plaintiff may present evidence of emotional distress upon learning that — 18 — Milliman allegedly reported incorrect information to prospective insurers, the subsequent — 19 — denial of insurance that he claims happened as a result, as well as his efforts to correct the — 20 — alleged errors in the report. Guimond v. Trans Union Credit Info. Co., 45 F.3d 1329 , 1333 — 21 — (9th Cir. 1995) (suggesting that the plaintiff’s alleged “emotional distress, manifested by — 22 — sleeplessness, nervousness, frustration, and mental anguish resulting from the incorrect — 23 — information in her credit report” sufficed to establish actual damages). — 24 — B. Evidence regarding reinvestigation — 25 — Both parties seek to limit evidence regarding the reinvestigation into the alleged — 26 — errors in Plaintiff’s consumer report. — 27 — While evidence of the reinvestigation is not relevant to the “reasonableness” of — 1 — Milliman’s procedures under section 1681e(b), the Court finds some relevance to — 2 — Plaintiff’s claim of “actual” damages. Specifically, the amount of time Plaintiff spent — 3 — trying to get the purported inaccuracies fixed, and the alleged mental anguish and — 4 — frustration he dealt with in doing so, is relevant to his claim of emotional distress. This is — 5 — squarely within Guimond’s purview. In response, the Court will permit Milliman to offer — 6 — testimony that Plaintiff declined to work with Milliman by timely confirming the alleged — 7 — inaccuracies in writing, or otherwise failed to mitigate his damages (e.g., by seeking other — 8 — insurance). The Court will not permit evidence regarding the scope of Milliman’s — 9 — reinvestigation procedures. And consistent with the Court’s other rulings, the parties will — 10 — not be permitted to offer evidence of communications between the parties’ attorneys. — 11 — Furthermore, the Court will not permit any testimony or argument on the requirements of — 12 — section 1681i. — 13 — The parties are to meet and confer as to whether a limiting instruction or jury — 14 — instruction is necessary to prevent prejudice. For instance: “Any evidence occurring after — 15 — October 20, 2021, the date Plaintiff contacted Milliman regarding the report, is to be — 16 — considered for Plaintiff’s actual damages only and may not be considered to determine — 17 — whether Milliman failed to follow reasonable procedures under the FCRA.” — 18 — — 19 — DATED this 21st day of July, 2023. — 20 — 21 A — 22 — 23 The Honorable Richard A. Jones United States District Judge — 24 — — 25 — — 26 — — 27 —