Engineered to Amaze?: Court In Lawsuit Against Quicken Loans Finds Rule 406 Doesn't Cover Testimony About Industry Practice

Federal Rule of Evidence 406 provides that

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

As the recent opinion of the United States District Court for the Southern District of West Virginia in Kingery v. Quicken Loans, Inc., 2014 WL 2521699 (S.D.W.Va. 2014), makes clear, Rule 406 "refers to the routine practice of a specific organization, not the customs and practices of an industry."

Kingery arose "out of Quicken's alleged failure to provide the plaintiff, Alisha Kingery, a credit score disclosure 'as soon as reasonably practicable,' in violation of the Fair Credit Reporting Act." In response, Quicken moved for summary judgment dismissing the complaint, prompting Kingery to seek to admit the expert testimony of Chris McConville, a veteran loan officer. According to the court, McConville would have testified based on his personal experience as a banker that "a Loan Officer would review credit scores in every case ensuring the scores meet the minimum score standards prior to reviewing all the individual trade-lines."

And, according to the court, this fact rendered McConville's testimony inadmissible:

Ms. Kingery is attempting to admit habit evidence. Under Federal Rule of Evidence 406, "[e]vidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice." The rule clearly refers to the routine practice of a specific organization, not the customs and practices of an industry. Evidence of the routine practices of Mr. McConville or other organizations is not probative of whether Quicken acted in conformity with these practices. Simply put, evidence of one person's conduct is not evidence of another's conduct. See R.B. Ventures, Ltd., 2000 WL 520615, at *5 ("It is readily apparent that Rule 406 has nothing to do with the proffered expert opinion testimony about industry customs and practices. The plaintiff's proffered experts do not pretend to know anything about the habits of any individual whose conduct is pertinent to the case, or the routine practice of any such organization.").

-CM