Pacific Life Insurance Company et al v. The Bank of New York Mellon
Filing
278
OPINION AND ORDER: For the foregoing reasons, the Court finds that it was not clearlyerroneous for Judge Lehrburger to exclude Lys's testimony. Accordingly,Defendant's Rule 72 objections are OVERRULED and DENIED. (Signed by Judge Katherine Polk Failla on 11/15/2021) (rro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
PACIFIC LIFE INSURANCE COMPANY and
PACIFIC LIFE & ANNUITY COMPANY,
Plaintiffs,
-v.-
17 Civ. 1388 (KPF)
OPINION AND ORDER
THE BANK OF NEW YORK MELLON,
Defendant.
KATHERINE POLK FAILLA, District Judge:
Pending before the Court is a challenge to one portion of the February 2,
2021 Decision and Order issued by United States Magistrate Judge Robert W.
Lehrburger (the “February 2021 Order”), addressing the motions of Pacific Life
Insurance Company (“PacLife”) and Pacific Life & Annuity Company (together,
“Plaintiffs”) and the Bank of New York Mellon (“Defendant” or “BNYM”) to
exclude expert opinion testimony pursuant to Federal Rule of Evidence 702
and cases including Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993). In particular, Defendant has filed objections pursuant to Federal Rule
of Civil Procedure 72 to Judge Lehrburger’s exclusion of opinion testimony
from defense expert Thomas Lys. After careful review of the underlying
materials and the parties’ arguments, the Court rejects Defendant’s objections
and affirms the February 2021 Order.
BACKGROUND 1
The Court presumes familiarity with the factual and procedural
backgrounds of this case, both of which are detailed in the Court’s March 16,
2018 Opinion and Order on Defendant’s motion to dismiss. (Dkt. #53 (the
“March 2018 Order”)). A brief overview is set forth herein, drawing in part from
the recitation of the facts in the March 2018 Order.
A.
Factual Background
The instant action is one of several cases in this District in which
certificateholders of residential mortgage-backed securities (“RMBS”) trusts
brought claims against their common trustees. Plaintiffs here are
certificateholders of 13 securitization trusts who claim that Defendant BNYM
breached its contractual, fiduciary, and common-law duties, as well as its
duties under the Trust Indenture Act of 1939 (the “TIA”), 15 U.S.C. § 77aaa,
and the Streit Act, N.Y. Real Property Law § 124. Plaintiffs further claim that
Defendant was negligent in failing to avoid conflicts of interest and to perform
ministerial acts with due care.
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The facts in this Opinion are drawn from Plaintiffs’ complaint (“Complaint” or “Compl.”
(Dkt. #1)). The Court presumes all well-pleaded allegations in the Complaint as true, as
it must at this stage. See, e.g., Peralta v. St. Luke’s Roosevelt Hosp., No. 14 Civ. 2609
(KPF), 2015 WL 3947641, at *1 n.1 (S.D.N.Y. June 26, 2015). For ease of reference, the
Court will refer to Defendant’s memorandum of law in support of its Rule 72 objections
as “Def. Br.” (Dkt. #218); Plaintiffs’ response to Defendant’s Rule 72 objections as “Pl.
Resp.” (Dkt. #224); and Defendant’s reply brief in further support of its Rule 72
objections as “Def. Reply” (Dkt. #228). The Court refers to the declarations in support
of the parties’ briefing and the exhibits attached thereto using the convention “[Name]
Decl., Ex. [].”
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B.
Relevant Procedural Background
On October 2, 2020, Plaintiffs and Defendant filed motions in limine to
exclude the testimony of the other side’s expert witnesses, resulting in
challenges to thirteen experts in total. (Dkt. #150-165). On December 8, 2020,
the Court referred these motions to Magistrate Judge Robert W. Lehrburger for
resolution. (Dkt. #213). On February 22, 2021, Judge Lehrburger issued a
Decision and Order on the parties’ respective motions in limine, granting them
in part and denying them in part. (Dkt. #216 (the “February 2021 Order”)). As
relevant here, Judge Lehrburger excluded in full the testimony of one of
Defendant’s expert witnesses, economics professor Thomas Lys, whom
Defendant had retained to assess “whether, from an economic perspective, the
ability of Countrywide [the obligor under the governing agreements] to pay putback claims as alleged by Plaintiffs could be relevant for a damages calculation
as a stand-alone entity.” (Dkt. #165-25, ¶ 19 (“Lys Report”)). Citing numerous
deficiencies, Judge Lehrburger found Lys’s testimony to be “unreliable,
speculative, indefinite, and unhelpful to the jury.” (February 2021 Order at
42).
On March 8, 2021, Defendant filed objections to the February 2021
Order, asking this Court to set aside Judge Lehrburger’s decision with respect
to the exclusion of Lys’s testimony. (Dkt. #218). On March 22, 2021, Plaintiffs
opposed Defendant’s objections (Dkt. #220, 224-225), and on March 29, 2021,
Defendant replied to Plaintiffs’ opposition (Dkt. #228-229). Neither side
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objected to Judge Lehrburger’s rulings as to any of the remaining twelve expert
witnesses.
DISCUSSION
A.
Applicable Law
1.
Standard of Review of a Magistrate Judge’s Order
The standard of review that a district court applies to a magistrate
judge’s order “depends on whether the issue decided by the magistrate judge is
dispositive or nondispositive.” Blackrock Allocation Target Shares: Series S.
Portfolio v. Wells Fargo Bank, Nat’l Ass’n, No. 14 Civ. 10067 (KPF), 2018 WL
3863447, at *3 (S.D.N.Y. Aug. 13, 2018) (internal citation omitted); see
generally Kiobel v. Millson, 592 F.3d 78, 106 (2d Cir. 2010) (Jacobs, J.,
concurring). Whereas dispositive orders are subject to de novo review, if a
party timely objects to a magistrate judge’s nondispositive order, a district
court may only “modify or set aside any part of the order that is clearly
erroneous or is contrary to law.” Fed. R. Civ. P. 72(a); see also 28 U.S.C.
§ 636(b)(1)(A).
Orders involving discovery are considered nondispositive. Blackrock,
2018 WL 3863447, at *3. In particular, “the decision to admit or exclude
expert testimony is considered nondispositive of an action.” Sansalone v. Bon
Secours Charity Health Sys., No. 05 Civ. 8606 (BSJ), 2009 WL 1649597, at *2
(S.D.N.Y. June 9, 2009) (collecting cases). Accordingly, a district court must
affirm such orders unless they are “clearly erroneous or contrary to law.” 28
4
U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a); see also Blackrock, 2018 WL
3863447, at *3.
This standard of review is “highly deferential,” and “magistrates are
afforded broad discretion in resolving discovery disputes.” Sec. & Exch.
Comm’n v. Contrarian Press, No. 16 Civ. 6964 (VSB), 2020 WL 7079484, at *1
(S.D.N.Y. Dec. 2, 2020) (internal citations omitted). “An order is clearly
erroneous only when the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed” and is
“contrary to law if ‘it fails to apply or misapplies relevant statutes, case law or
rules of procedure.’” Blackrock, 2018 WL 3863447, at *3 (quoting Khaldei v.
Kaspiev, 961 F. Supp. 2d 572, 575 (S.D.N.Y. 2013)). “[T]he objector thus
carries a heavy burden.” Khaldei, 961 F. Supp. 2d at 575.
2.
Admissibility of Expert Opinion Testimony
Judge Lehrburger’s February 2021 Order addressed the admissibility of
expert testimony, and this Court accordingly proceeds to consider the legal
standards on that issue. The Supreme Court has tasked district courts with a
“gatekeeping” role with respect to expert opinion testimony. Daubert, 509 U.S.
at 597 (holding that it is the district court’s responsibility to ensure that an
expert’s testimony “both rests on a reliable foundation and is relevant to the
task at hand”). This “gatekeeping” function applies whether the expert
testimony is based on scientific, technical, or “other specialized” knowledge.
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999). “It is wellestablished that the trial judge has broad discretion in the matter of the
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admission or exclusion of expert evidence[.]” Boucher v. U.S. Suzuki Motor
Corp., 73 F.3d 18, 21 (2d Cir. 1996) (citation and quotation marks omitted).
Federal Rule of Evidence 702 provides:
A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in
the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in
issue;
(b) the testimony is based on sufficient facts or
data;
(c) the testimony is the product of reliable
principles and methods; and
(d) the expert has reliably applied the principles
and methods to the facts of the case.
Fed. R. Evid. 702. A court’s inquiry thus focuses on three issues: (i) whether
the witness is qualified to be an expert; (ii) whether the opinion is based upon
reliable data and methodology; and (iii) whether the expert’s testimony on a
particular issue will assist the trier of fact. Nimely v. City of New York, 414
F.3d 381, 396-97 (2d Cir. 2005). “[T]he proponent of expert testimony has the
burden of establishing by a preponderance of the evidence that the
admissibility requirements of Rule 702 are satisfied[.]” United States v.
Williams, 506 F.3d 151, 160 (2d Cir. 2007).
In the instant case, item one is obviated by the absence of any challenge
to Lys’s qualifications as an expert. Accordingly, the Court focuses on the
reliability of Lys’s testimony and its helpfulness to the jury.
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a.
Reliability of Expert Testimony
Once a court has determined that a witness is qualified as an expert, it
must ensure that the expert’s testimony both “rests on a reliable foundation
and is relevant to the task at hand.” Daubert, 509 U.S. at 597. In order to be
admissible, “[a]n expert opinion requires some explanation as to how the expert
came to his conclusion and what methodologies or evidence substantiate that
conclusion.” Riegel v. Medtronic, Inc., 451 F.3d 104, 127 (2d Cir. 2006), aff’d
on other grounds, 552 U.S. 312 (2008).
Rule 702 requires that “expert testimony rest on ‘knowledge,’ a term that
‘connotes more than subjective belief or unsupported speculation.’” In re
Rezulin Prod. Liab. Litig., 309 F. Supp. 2d 531, 543 (S.D.N.Y. 2004) (quoting
Daubert, 509 U.S. at 590). “[A] trial judge should exclude expert testimony if it
is speculative or conjectural or based on assumptions that are so unrealistic
and contradictory as to suggest bad faith.” Zerega Ave. Realty Corp. v.
Hornbeck Offshore Transp., LLC, 571 F.3d 206, 213-14 (2d Cir. 2009) (citation
and quotation marks omitted). “[O]ther contentions that the assumptions are
unfounded go to the weight, not the admissibility, of the testimony.” Id.
(alteration in original) (citation omitted).
“In deciding whether a step in an expert’s analysis is unreliable, the
district court should undertake a rigorous examination of the facts on which
the expert relies, the method by which the expert draws an opinion from those
facts, and how the expert applies the facts and methods to the case at hand.”
Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 267 (2d Cir. 2002). “A
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district court has discretion under Federal Rule of Evidence 703 to determine
whether the expert acted reasonably in making assumptions of fact upon
which he would base his testimony.” Boucher, 73 F.3d at 21 (internal
quotation marks and citations omitted). “A minor flaw in an expert’s reasoning
or a slight modification of an otherwise reliable method” does not itself require
exclusion; exclusion is only warranted “if the flaw is large enough that the
expert lacks good grounds for his or her conclusions.” Amorgianos, 303 F.3d at
267 (citation and internal quotation marks omitted). This is because “our
adversary system provides the necessary tools for challenging reliable, albeit
debatable, expert testimony.” Id. “Vigorous cross-examination, presentation of
contrary evidence, and careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky but admissible evidence.”
Id. (quoting Daubert, 509 U.S. at 596).
While a district court has “broad latitude” in deciding both “how to
determine reliability” and in reaching “its ultimate reliability determination,” it
may not abandon its “gatekeeping function.” Williams, 506 F.3d at 160-61
(citation omitted). “[N]othing in either Daubert or the Federal Rules of Evidence
requires a district court to admit opinion evidence that is connected to existing
data only by the ipse dixit of the expert.” Kumho Tire, 526 U.S. at 157 (internal
citation omitted). Thus, “when an expert opinion is based on data, a
methodology, or studies that are simply inadequate to support the conclusions
reached, Daubert and Rule 702 mandate the exclusion of that unreliable
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opinion testimony.” Ruggiero v. Warner-Lambert Co., 424 F.3d 249, 255 (2d
Cir. 2005) (citing Amorgianos, 303 F.3d at 266).
b.
Helpfulness or Relevance of Testimony
Separately, the Court must determine whether the proposed expert
testimony “will help the trier of fact to understand the evidence or to determine
a fact in issue.” Fed. R. Evid. 702. This inquiry looks primarily to whether the
testimony is relevant. See In re Zyprexa Prod. Liab. Litig., 489 F. Supp. 2d 230,
283 (E.D.N.Y. 2007) (citing Daubert, 509 U.S. at 591-92). Under the Federal
Rules of Evidence, evidence is relevant if it has a “tendency to make a fact more
or less probable than it would be without the evidence.” Fed. R. Evid. 401; see
also Daubert, 509 U.S. at 591-92 (“Rule 702’s ‘helpfulness’ standard requires a
valid scientific connection to the pertinent inquiry as a precondition to
admissibility.”).
A court should not admit expert testimony that is “directed solely to lay
matters which a jury is capable of understanding and deciding without the
expert’s help.” United States v. Mulder, 273 F.3d 91, 104 (2d Cir. 2001)
(quoting United States v. Castillo, 924 F.2d 1227, 1232 (2d Cir. 1991)); see also
Atlantic Specialty Ins. v. AE Outfitters Retail Co., 970 F. Supp. 2d 278, 291-92
(S.D.N.Y. 2013) (excluding expert’s “opinion on the extent of fire damage
resulting from [fire department’s] response time,” where expert’s opinion was
essentially that “a fire causes increasing damage the longer it burns,” because
“a lay person is entirely capable of reaching this conclusion without the help of
an expert”).
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Expert testimony must also adhere to the other Federal Rules of
Evidence, including Rule 403, which provides that relevant evidence may still
be excluded “if its probative value is substantially outweighed by a danger of
one or more of the following: unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.” Fed. R. Evid. 403. The Rule 403 inquiry is particularly important in
the context of expert testimony, “given the unique weight such evidence may
have in a jury’s deliberations.” Nimely, 414 F.3d at 397; see also Daubert, 509
U.S. at 595 (“‘Expert evidence can be both powerful and quite misleading
because of the difficulty in evaluating it. Because of this risk, the judge in
weighing possible prejudice against probative force under Rule 403 of the
present rules exercises more control over experts than over lay witnesses.’”
(quoting Jack B. Weinstein, Rule 702 of the Federal Rules of Evidence Is Sound;
It Should Not Be Amended, 138 F.R.D. 631, 632 (1991))).
B.
Analysis
At the outset, the Court observes that it is a testament to Judge
Lehrburger’s thoughtful analysis that only one of his decisions is challenged.
That challenge is to his decision to exclude the opinion of defense expert
Thomas Lys, a specialist in financial economics working with Analysis Group,
who provided opinions about the extent to which Countrywide had the
wherewithal to repurchase loans and how that may affect a damages analysis.
(February 2021 Order at 41). In brief, Judge Lehrburger found problems with
Lys’s involvement in the preparation of his report; certain of the factual
10
underpinnings of his expert opinions; and the helpfulness vel non of his
opinions to a jury. (Id. at 41-44).
Defendant advances four arguments in its Rule 72 objections. First,
Defendant argues that the wholesale exclusion of Lys’s opinions based on his
own deposition testimony about the ostensibly flawed process used to generate
the report is clearly erroneous and contrary to law, because (i) Daubert does
not preclude the use of assistants in forming expert opinions; (ii) Lys’s
deposition testimony reflected close involvement in the preparation of the
report and intimate familiarity with its contents; and (iii) Judge Lehrburger
erroneously concluded that Lys did not understand why certain statements
were included in his report. (Def. Br. 5-13). Second, Defendant asserts
that challenges to an expert’s assumptions go to weight, not admissibility. (Id.
at 13-20). Third, Defendant argues that the February 2021 Order
impermissibly faulted Lys for failing to quantify Plaintiffs damages. (Id. at 2122). Fourth, Defendant claims that Judge Lehrburger improperly excluded
Lys’s opinions because of mere disagreement with their implications. (Id. at
23-24). Ultimately, this Court agrees with Judge Lehrburger’s finding that
Lys’s report was unreliable. Because this is a sufficient basis on which to
exclude Lys’s testimony, the Court need only address Defendant’s first two
arguments.
1.
Lys Did Not Substantially Participate in the Preparation of the
Report
Judge Lehrburger found that “Lys’s lack of involvement and familiarity
with his own report renders its reliability highly suspect.” (February 2021
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Order at 42). Defendant disagrees with Judge Lehrburger’s characterization of
Lys’s involvement in the drafting of the report, arguing that “it is well settled
that assistants may help experts research and draft their reports,” and,
further, that “[t]here is no authority for the proposition that merely failing to
recall who wrote what is grounds for exclusion.” (Def. Br. 7-8). Defendant is
correct on the law, but Judge Lehrburger was equally correct in applying that
law to the facts of this case.
To begin, Defendant is correct that “an expert may rely on assistants or
the opinions of other experts in formulating their own expert opinions.”
Faulkner v. Arista Recs. LLC, 46 F. Supp. 3d 365, 385 (S.D.N.Y. 2014). The
rules of evidence “allow an expert to present the work of others if the expert
supervised, directed, or participated in that work, and if the expert is qualified
in the field and could perform the work themselves.” In re M/V MSC Flaminia,
No. 12 Civ. 8892 (KBF), 2017 WL 3208598, at *2 (S.D.N.Y. July 28, 2017). By
contrast, “[t]he Court will preclude proffered witnesses who simply aggregate or
recite the opinions of others.” Id. In other words, “[t]he expert witness must in
the end be giving his own opinion. He cannot simply be a conduit for the
opinion of an unproduced expert.” Malletier v. Dooney & Bourke, Inc., 525 F.
Supp. 2d 558, 664 (S.D.N.Y. 2007) (excluding testimony of expert witness who
purported to rely on another expert over whom he “exercised little if any
supervision”).
In the February 2021 Order, Judge Lehrburger did not take issue with
Lys’s use of assistants, but rather with Lys’s “considerable lack of familiarity
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with his report.” (February 2021 Order at 42). And despite Defendant’s
present contention that Lys claims “ownership of everything in his report” (Def.
Br. 9), it is clear from Lys’s deposition testimony that he did not substantially
participate in the preparation of his report. Judge Lehrburger found that, at
his deposition,
Lys conceded that he could not identify in his report
anything specific that he wrote; could not recall how
much time he spent editing the report or any details of
directions he gave for its preparation; could not identify
which Analysis Group individuals performed what tasks
or even describe the supervision he purportedly
provided other than to say “they did what I told them to
do,” which he could not specify; and “rel[ied] on their
hours to collect data, to analyze data, and to, you know,
produce the product.”
(February 2021 Order at 42 (quoting Dkt. #165-24 (“Lys Dep.”) at 21-25, 2829)).
Indeed, Lys’s deposition testimony reveals that while Lys was able to
identify the names of four individuals at Analysis Group with whom he worked,
he was unable to describe what any of them did in connection with the
preparation of the report. (Lys Dep. 21-22). Lys could not identify “all the
people who wrote words that appear in the report,” nor did he know how many
such people there were. (Id. at 23). Lys could not even recall whether he
personally wrote an initial draft of the report or whether the draft had been
sent to him by someone else. (Id. at 24-25).
In Bank of New York Mellon v. WMC Mortgage, LLC, which Judge
Lehrburger cited in the February 2021 Order, a sister court in this District
excluded an expert’s opinion even though the expert claimed his report
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contained his analysis and was “prepared at my direction or adopted by me
based on my review and analysis of the quality and integrity of the . . . analysis
performed by others.” No. 12 Civ. 7096 (DLC), 2015 WL 4887446, at *3
(S.D.N.Y. Aug. 17, 2015). The court found that the expert “[did] not know the
experience of any of [the reunderwriters] who worked on this project, [and] he
[was] unaware of the instructions they were given or the extent to which their
work was subject to quality control.” Id. at *6. Lys’s deposition testimony
confirms that his level of involvement in the preparation of his report was
similarly deficient. It was thus not clear error for Judge Lehrburger to find
Lys’s participation in developing the report to be fatally lacking.
2.
Lys’s Report Is Predicated on a Key Assumption That
Undermines Its Reliability and Usefulness to the Jury
Lys’s lack of involvement in the preparation of the report begets a second
problem: an expert may not “merely adopt another expert’s opinions as his or
her own reflexively and without understanding the materials or methods
underlying the other expert’s opinions.” U.S. Bank N.A. v. PHL Variable Life
Ins. Co., 112 F. Supp. 3d 122, 131 (S.D.N.Y. 2015); see also Mason v. AmTrust
Fin. Servs., Inc., No. 19 Civ. 8364 (DLC), 2020 WL 7425254, at *5 (S.D.N.Y.
Dec. 18, 2020) (excluding opinion of expert who relied in part on figures
provided by plaintiff, with “no explanation of their source” or “any reason to
believe that they rest on a reliable foundation”); Arista Recs. LLC v. Usenet.com,
Inc., 608 F. Supp. 2d 409, 428 (S.D.N.Y. 2009) (excluding expert’s opinions
that were “merely a restatement of Defendant[’s] views and [were] not the
product of independent analysis”); In re Zyprexa, 489 F. Supp. 2d at 288
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(excluding expert’s testimony as to the specifics of how Zyprexa’s regulatory
issues were processed by the FDA, because the expert had not conducted
independent analysis of the issues and lacked specific knowledge of the
matter); Gary Price Studios, Inc. v. Randolph Rose Collection, Inc., No. 03 Civ.
969 (CSH), 2006 WL 1319543, at *8 (S.D.N.Y. May 11, 2006) (granting motion
to exclude expert testimony where court found expert was, in large measure,
parroting the testimony of the plaintiff); Rowe Entm’t, Inc. v. William Morris
Agency, Inc., No. 98 Civ. 8272 (RPP), 2003 WL 22124991, at *6 (S.D.N.Y.
Sept. 15, 2003) (excluding expert’s damages calculation under Daubert, in part,
for failing to perform any independent analysis to validate information provided
by the plaintiff).
Lys’s report is predicated on a key assumption related to Countrywide’s
exposure to hypothetical put-back claims, an assumption that ultimately limits
the report’s reliability and usefulness to the jury. As explained in that report,
[t]o determine Countrywide’s ability to pay the put-back
claims BNYM would have pursued in the but-for world,
it is necessary to know: [i] the amount of the alleged
put-back claims; [ii] when such claims would allegedly
have been paid; [iii] other potential claims Countrywide
faced at the same time; and [iv] the assets available to
Countrywide at the time to pay such claims.
(Lys Report ¶ 23). Because he claimed that Plaintiffs had not yet identified the
specific loans that allegedly should have been repurchased or the precise
timing of payments on these loans, Lys focused his analysis on his third-listed
factor, that is, the other potential claims against Countrywide. In this regard,
Lys noted that in addition to the thirteen trusts at issue in this case, Defendant
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was the trustee for at least 518 other trusts with Countrywide loans. (Id. at
¶ 50). According to the report, had Defendant pursued put-back claims with
respect to all 531 of these trusts, and had each trust experienced similar
losses, then those losses would have totaled over $18.7 billion — a number
significantly in excess of Countrywide’s $6.1 billion in adjusted assets. (Id. at
¶¶ 52, 55). This extrapolation is key to Lys’s conclusion that “Countrywide’s
ability to pay the alleged put-back claims … is a matter of real economic
significance that must be considered in assessing Plaintiffs’ damages claims”
(id. at ¶ 55), because it relies on the assumption that the 531 trusts are
similarly situated. Indeed, the report recites, “I understand that the contracts
that Plaintiffs allege obligated BNYM to pursue put-back claims related to the
At-Issue Trusts are similar to BNYM’s contracts related to other trusts with
Countrywide loans.” (Id. at ¶ 50). Critically, nowhere was Lys able articulate a
valid basis for this assumption.
At his deposition, Lys was asked to explain the basis for his
understanding that the at-issue trusts were similar to the not-at-issue trusts.
Lys responded in part, “I believe my understanding came from counsel, but as I
sit here today, I don’t know where it came from.” (Lys Dep. 110:16-18). When
asked whether he himself looked at the pooling and servicing agreements
(“PSAs”) in the trusts to determine what was similar and what was not, Lys
stated, “I myself did not — it is quite possible that somebody on my team did”
(id. at 110:22-23), before hastening to add, “I don’t recall whether they did or
didn’t” (id. at 111:1). Similarly, when asked, “Whoever it is who conveyed that
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