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Ishee v. Federal National Mortgage Association

United States District Court, S.D. Mississippi, Eastern Division

January 15, 2015

PORTIA B. ISHEE, Plaintiff,


KEITH STARRETT, District Judge.

For the reasons stated below, the Court grants in part and denies in part Defendants' Motion to Strike Untimely Designation [191] and grants in part and denies in part Defendants' Motion to Exclude [208, 311, 332] the testimony of Bernard Jay Patterson.


First, Defendants argue that the Court should strike the "Supplemental and Amended Expert Witness Report" [191-3] provided by Plaintiff's expert, Bernard Jay Patterson. Defendants contend that the report is not a supplement to Patterson's initial report [191-1], but that it contains entirely new opinions in an area of expertise for which Patterson was not designated.

A. Applicable Law

Rule 26 provides that "a party must disclose to the other party the identity of any witness it may use at trial to present" expert testimony. FED. R. CIV. P. 26(a)(2)(A). "Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report - prepared and signed by the witness - if the witness is one retained or specially employed to provide expert testimony in the case...." FED. R. CIV. P. 26(a)(2)(B). Among other things, the report must contain "a complete statement of all opinions the witness will express and the basis and reasons for them, " "the facts or data considered by the witness in forming them, " and "any exhibits that will be used to summarize or support them...." FED. R. CIV. P. 26(a)(2)(B)(i)-(iii). In summary, a proponent of expert testimony must provide "a detailed and complete written report, stating the testimony the witness is expected to present during direct examination, together with the reasons therefor." FED. R. CIV. P. 26 advisory committee's note. The "purpose of the reports is to avoid the disclosure of sketchy and vague expert information...." Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d 546, 571 (5th Cir. 1996).

"A party must make these disclosures at the times and in the sequence that the court orders, " FED. R. CIV. P. 26(a)(2)(D), and "[t]he parties must supplement these disclosures when required under Rule 26(e)." FED. R. CIV. P. 26(a)(2)(E). "[A] party is required to supplement its expert disclosures if the court so orders or if the party learns in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.'" Sierra Club, 73 F.3d at 570 n. 42 (quoting FED. R. CIV. P. 26(e)(1)). "[T]he party's duty to supplement extends both to information included in the report and to information given during the expert's deposition. Any additions or changes to this information must be disclosed by the time the party's pretrial disclosures under Rule 26(a)(3) are due." Fed.R.Civ.P. 26(e)(2). Rule 26(a)(3) provides that pretrial disclosures must be made at least thirty days before trial, "unless the court sets a different time...." Local Rule 26 provides that a "party is under a duty to supplement disclosures at appropriate intervals under Fed.R.Civ.P. 26(e) and in no event later than the discovery deadline established by the case management order." L.U.Civ.R. 26(a)(5).

In summary, Plaintiff's expert designations were due on or before May 15, 2014 [47], and any supplements were due on or before August 1, 2014 - the discovery deadline - unless they were otherwise made known to Defendants during discovery. FED. R. CIV. P. 26(e)(1)-(2); L.U.Civ.R. 26(a)(5). Plaintiff served the disputed report on August 1, 2014. Therefore, if it is a supplement, it was timely. But if it contains entirely new opinions or addresses subject matter outside the scope of Plaintiff's designation and Patterson's initial report, it is not a supplement. Rather, it is an untimely designation. See Harmon v. Ga. Gulf Lake Charles LLC, 476 F.App'x 31, 36 (5th Cir. 2012); Garza v. Allstate Tex. Lloyd's Co., 284 F.App'x 110, 112 (5th Cir. 2008); Elliot v. Amadas Indus., 796 F.Supp.2d 796, 802 (S.D.Miss. 2011); Cooper Tire & Rubber Co. v. Farese, 3:02-CV-210-SA-JAD, 2008 U.S. Dist. LEXIS 96729, at *10-*11 (N.D. Miss. Nov. 26, 2008).

B. Supplement or Untimely Designation?

Plaintiff designated [208-3] Patterson as a "Certified Fraud Examiner specializing in... examination and forensic and investigative accounting involving the servicing transactions of mortgage loans...." Plaintiff represented that Patterson would provide a forensic analysis of the servicing on her loan, and that he would provide an opinion that Defendants improperly "refused to apply the insurance proceeds to the balance owed on the home, " and that "[p]roper accounting oversight and guides should have been in place to monitor the activities of the loan servicer and to prevent such misconduct."

In his initial report [191-1], Patterson stated that he was asked to "[p]rovide a forensic accounting investigation, examination, and analysis of the mortgage loan transactions during the life of the subject mortgage loan and... offer [his] findings and conclusions." He examined the transaction history data related to Plaintiff's loan and summarized the relevant transactions and events. He asserted that GMAC could have pursued options other than foreclosure once it received the payoff amount from Alfa Insurance that was short by $93.60. According to Patterson, if the funds had been properly applied, the loan would have been brought current and/or paid to zero, avoiding foreclosure and litigation.

In his supplemental report, Patterson represented that Plaintiff's counsel asked him to amend the original report in several ways. First, he amended his original analysis of the application of the Alfa Insurance payment to account for transaction records received from GMAC after the initial report had been prepared. Next, he provided a substantial analysis regarding Fannie Mae's servicing guides - explaining them, interpreting them, and applying them to Defendants' actions. Patterson also provided opinions and analysis regarding force-placed insurance, Defendants' fiduciary duties, and several alternative damage calculations.

In the Court's opinion, most of the supplemental report [191-3] constitutes entirely new opinions which exceed the scope of Patterson's designation [208-3] and initial report [191-1]. Broadly construing the designation and initial report, Patterson was retained to provide an explanation of the loan servicing transaction history, an analysis of the application of the Alfa Insurance funds, and an opinion as to whether the funds were properly applied. The portion of the supplemental report which revises the initial analysis to account for the detailed transaction history obtained from GMAC is a proper supplement. However, the portions which 1) address and apply Fannie Mae's servicing guides, 2) provide opinions and analysis regarding force-placed insurance, 3) provide opinions regarding Defendants' alleged fiduciary duties, and 4) ...

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