VILKOFSKY v. RUSHMORE LOAN SERVICING, LLC et al
Filing
139
MEMORANDUM OPINION (details more fully stated in said Order); An appropriate Order follows. Signed by Judge Nora Barry Fischer on 6/12/18. (jg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
FRANCIS VILKOFSKY, JR.,
)
)
Plaintiff,
)
)
v.
)
)
SPECIALIZED LOAN SERVICING, LLC, )
U.S. BANK, N.A., and
)
RUSHMORE LOAN MANAGEMENT
)
SERVICES, LLC,
)
)
Defendants. )
2:16-cv-01291-NBF
District Judge Nora Barry Fischer
MEMORANDUM OPINION
I.
INTRODUCTION
Plaintiff, the owner of a home in McKeesport, Pennsylvania, brought this action against
the servicers of his mortgage for violations of the Real Estate Settlement Procedures Act, 12
U.S.C. §§ 2601, et seq. (“RESPA”). Presently before the Court are the Motion to Exclude
Testimony and Expert Report of Theresa Bishop (Docket No. 124) filed by Rushmore Loan
Management Services, LLC (“Rushmore”) and the Motion to Exclude Testimony of Theresa M.
Bishop as an Expert and Lay Opinion Witness, and to Exclude Her Expert Report (Docket No.
126) filed by Specialized Loan Servicing LLC (“SLS”) (collectively “Defendants”). The Court
has now reviewed Rushmore’s Motion (Docket No. 124), the Brief in Support of Rushmore’s
Motion (Docket No. 125), SLS’s Motion (Docket No. 126), the Brief in Support of SLS’s
Motion (Docket No. 127), Plaintiffs’ Brief in Opposition, (Docket No. 130), Rushmore’s Reply
Brief (Docket No. 132), SLS’s Reply Brief, (Docket No. 134), and Plaintiff’s Sur-Reply Brief
(Docket No. 138). The parties waived the hearing and oral argument with regard to the
Defendants’ Motions and all supplemental briefing. (Docket No. 133). After careful
consideration of the parties’ positions, and for the following reasons, Defendants’ Motions are
GRANTED, in part, and DENIED, in part.
II.
FACTUAL AND PROCEDURAL BACKGROUND1
Plaintiff Frank Vilkofsky is the owner of a home in McKeesport, Pennsylvania. (Docket
No. 58 at ¶ 5). Vilkofsky alleges that the servicer of the mortgage on his home, Rushmore,
accepted all of Vilkofsky’s mortgage payments for the 2013 calendar year and up until August
2014, when Rushmore allegedly returned Vilkofsky’s mortgage payment without explanation.
(Docket No. 58 at ¶¶ 17-19). Correspondence between Vilkofsky and Rushmore in September
and October 2014 reveals that Rushmore had increased the amount of Vilkofsky’s monthly
payments. (Docket Nos. 58-1 - 58-6). The parties dispute whether Vilkofsky had been notified of
the increase. Nevertheless, Vilkofsky did not pay the increased amount as of the effective date
and, as such, Rushmore considered the account to be two months’ delinquent as of October 23,
2014, with the payment due September 1, 2014 still outstanding. (Docket No. 58-6).
Vilkofsky alleges that he sent multiple checks to Rushmore, but the checks were either
held without being cashed or were returned. (Docket Nos. 58-2:58-18). As of November 4, 2015,
Rushmore considered Vilkofsky to be fifteen payments delinquent. (Docket No. 58-16). Regular
correspondence between Vilkofsky and Rushmore did not resolve the matter. (Docket Nos. 58-8
- 58-17).
On December 28, 2015, SLS replaced Rushmore as Vilkofsky’s mortgage servicer.
(Docket No. 58 at ¶¶ 40-41). Following a review of the financial records related to the mortgage,
SLS concluded that there were no errors, the delinquency was proper, and that all fees due and
owing to Rushmore were valid. (Docket No. 58-19). SLS also provided its summary of customer
Given the Court’s prior recitation of the facts in its Memorandum Opinion dated March 3, 2017 (Docket No. 53)
and the parties’ familiarity with the factual and procedural background, the Court will limit its discussion to only
those facts pertinent to the instant Motions.
1
2
account activity. (Docket No. 58-20). SLS informed Vilkofsky that it would not accept payment
in any amount less than the full amount due and owing: $23,414.14 as of June 13, 2016. (Docket
No. 58-19).
On August 24, 2016, Vilkofsky initiated the instant action alleging violations of
numerous consumer protection statutes by SLS, Rushmore, and U.S. Bank. (Docket No. 1). The
claims in this case were subsequently narrowed to only those claims in Counts I and III of the
Second Amended Complaint that allege violations of RESPA by the servicers of Vilkofsky’s
mortgage, Rushmore and SLS.2 (Docket Nos. 54, 81). “A plaintiff claiming a RESPA violation
must allege not only a breach of a duty required to be performed under RESPA, but must also
show that the breach caused him to suffer damages.” (Docket No. 80, at 7 (citing Wilson v. Bank
of Am., N.A., 48 F. Supp. 3d 787, 799 (E.D. Pa. 2014)). Vilkofsky alleges that Rushmore and
SLS’s improper handling of error notices related to his mortgage caused him to sustain actual
damages in the form of “enormous mental stress for [his] family” and “extreme stress worrying
about whether he will lose his home in foreclosure.” (Docket No. 58 at ¶ 84).
To further his claims, Vilkofsky has proffered Theresa Bishop, BS, MS, L.P.C.,
C.A.A.D.C. (“Bishop”), a licensed professional counselor, as an expert in this matter to testify
regarding his alleged emotional distress, including anxiety and depression, and related damages.
Bishop prepared an expert report dated December 9, 2018 (Docket No. 125-2, the “Bishop
Letter”) to “express [her] opinions regarding the psychological impact of Mr. Vilkofsky’s
mortgage problems on Mr. Vilkofsky, and the basis for those opinions.” In said letter, she
concludes that “Mr. Vilkofsky suffers from both anxiety and depression.” (Id.).
2
The Court dismissed said claims to the extent that an accounting was sought as an equitable remedy. (Docket No.
81).
3
III.
ALLEGED EXPERT CREDENTIALS
Bishop is a professional addiction counselor and mental health therapist. (Bishop Depo.,
Docket No. 130-1, at 14-16). She earned a bachelor of science degree in social work in 2004 and
a master of science degree in professional counseling in 2009 from Carlow University. (Id. at 1314). Bishop became a Licensed Professional Counselor (“L.P.C.”) in the Commonwealth of
Pennsylvania in 2014, and earned an Advanced Certification in Drug and Alcohol Counseling
(“C.A.A.D.C.”) from the International Certification and Reciprocity Consortium in 2011. (Id. at
14). She is also certified to diagnose based on the criteria set forth in the Diagnostic and
Statistical Manual of the American Psychiatric Association, Fourth Edition (“DSM-IV”). (See
Bishop Depo. at 17-18).
She is currently employed by the Pennsylvania Organization for Women in Early
Recovery (“POWER”), where she conducts in-home drug and alcohol assessments to determine
an appropriate level of care and then makes referrals and recommendations. (Id. at 14). Prior to
working at POWER, Bishop worked as a mental health therapist for approximately nine months
for a community treatment team called Wesley Family Services. (Id. at 14-15). While at Wesley
Family Services, Bishop worked with adults in the community who had been diagnosed with
serious mental illness. (Id. at 15). She also worked as an addiction counselor at Tadiso
Incorporated for approximately two years, where she provided counseling to people with opiate
addictions. (Id. at 15-16). Prior to her work at Tadiso, she worked as a drug and addiction
counselor and intake specialist at the Discovery House Pennsylvania. (Id. at 16). In her earlier
roles, she was responsible for diagnosing patients as it related to drugs and alcohol, but has never
diagnosed a patient with severe depression or anxiety. (Id. at 19).
4
Bishop has never published in the area of psychology or counseling, and has never
conducted any peer-reviewed studies or research. (Id. at 14). Also, she has not served as an
expert witness. (Id.). At this point in the litigation, Bishop has produced one expert report in the
form of a two-page letter (Docket No. 125-2) as noted above, and sat for a deposition on
February 12, 2018 (Docket No. 125-1).
IV.
ALLEGED EXPERT REPORT AND DEPOSITION TESTIMONY
Bishop testified at her deposition that she first met Vilkofsky in August 2015 after
meeting him on the online dating website match.com, and the two developed a friendship. (See
Id. at 21-22). She further testified that her conclusions in the Bishop Letter that Vilkofsky suffers
from both anxiety and depression as a result of his interactions with the servicers of his mortgage
are based on interactions with Vilkofsky during their friendship. (Id. at 34-35).
In support of her opinions, Bishop wrote that Vilkofsky discussed his personal life,
“professional life and family matters” and that he expressed his frustrations about his
experiences with “those entities that are handling his mortgage payments on his personal
residence.” (Bishop Letter, at 2). Bishop opined that “the emotional and physical issues that Mr.
Vilkofsky has been experiencing over the last several years are the result of Mr. Vilkofsky’s
interactions with the entities that have been handling Mr. Vilkofsky’s mortgage on his personal
residence.” (Id.).
Bishop testified that she has never seen Vilkofsky in a professional setting nor provided
him with professional services (Bishop Depo. at 28, 34, 40), and that the methodology she would
otherwise impose on a patient to reach a DSM-IV diagnosis was not employed in this case. (Id.
at 34-35). Bishop further stated that she felt it would be unethical to provide Vilkofsky with a
diagnosis due to their friendship. (Id. at 44).
5
Bishop does not have an engagement letter for this matter and is not being paid for her
testimony or her report in this case. (Id. at 8-9, 27-28, 41, 44). Bishop did not maintain any notes
of her conversations with Vilkofsky. (Id. at 27).
V.
DISCUSSION
The use of an expert witness at trial is governed by both the federal procedural and
evidentiary rules. While Rule 702 of the Federal Rules of Evidence governs the admissibility of
expert opinion testimony at trial, Rule 26 of the Federal Rules of Civil Procedure details the
discovery procedures for the disclosure of expert witnesses, their reports, and matters considered
by the expert.
A. Rule 26 Analysis
Under FED. R. CIV. P. 26, a party must disclose “the identity of any witness it may use at
trial to present evidence under Federal Rule of Evidence 702” and “this disclosure must be
accompanied by a written report,” which must contain the following:
(i)
a complete statement of all opinions the witness will express
and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness’s qualifications, including a list of all
publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years,
the witness testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and
testimony in the case.
FED. R. CIV. P. 26(2)(A)-(B). “Rule 26 places the burden of providing the disclosures squarely
on the party who has retained the expert.” Jennings v. Thompson, 792 F. Supp. 2d 1, 5-7 (D.D.C.
2011). Failure to abide by the disclosure requirements in these provisions is governed by FED. R.
CIV. P. 37(c)(1), which provides that “[i]f a party fails to provide information or identify a
witness as required by Rule 26(a) or (e), the party is not allowed to use that information or
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witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.” FED. R. CIV. P. 37(c)(1). To that end, the United States
Court of Appeals for the Third Circuit has held that, “in considering whether the exclusion of
evidence is an appropriate sanction for failure to comply with discovery duties,” a district court
must consider:
(1)
(2)
(3)
(4)
the prejudice or surprise of the party against whom the
excluded evidence would have been admitted;
the ability of the party to cure that prejudice;
the extent to which allowing the evidence would disrupt the
orderly and efficient trial of the case or other cases in the
court; and
bad faith or willfulness in failing to comply with a court or
discovery obligation.
Nicholas v. Pennsylvania State Univ., 227 F.3d 133, 148 (3d Cir. 2000) (citation omitted). The
court should also consider, “the importance of the excluded testimony.” Konstantopoulos v.
Westvaco Corp., 112 F.3d 710, 719 (3d Cir. 1997) (quoting Meyers v. Pennypack Woods Home
Ownership Ass’n, 559 F.2d 894, 904 (3d Cir. 1977)).
Defendant SLS argues that the Bishop Letter does not contain a complete statement of all
opinions the witness will express, the basis and reasons for the opinions, the facts (other than
private conversations) and data considered in forming the opinions. (Docket No. 127, at 15-16).
SLS maintains that because the Bishop Letter does not satisfy the basic requirements of Rule 26,
the Bishop Letter must be excluded and Bishop must be prohibited from testifying. (Id.). In
response, Vilkofsky argues that all of the information required by Rule 26 has been disclosed
through the Bishop Letter and at her deposition. (Docket No. 138, at 3).
After considering the factors set out above, the Court finds that they weigh against
striking the proffered testimony and expert report. First, Defendants have not expressly claimed
prejudice related to the disclosures provided here pursuant to Rule 37(c)(1). Indeed, Defendants
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were given the opportunity to cross-examine Bishop at her deposition and did in fact question
her regarding the bases for her opinions and all facts and data she used in forming those
opinions. Further, as SLS notes, Bishop did not rely on any documents to form or support her
opinions, she has not published in the area of counseling or psychology, she has not conducted
any peer-reviewed studies or research, and she has never testified as an expert at trial or
deposition. (Bishop Depo. at 7-8, 13-14). Thus, prejudice to the Defendants is minimal given the
contents of the Bishop Letter and the Bishop deposition, both of which the Defendants have
challenged under Rule 702 and Daubert, as discussed in the next section of this opinion.
Secondly, Bishop’s proffered testimony is arguably a significant part of Vilkofsky’s case and
there is no evidence that the Rule 26 violation was made in bad faith or that the underlying
information was willfully withheld. See Konstantopoulos, 112 F.3d at 719. Accordingly, the SLS
Motion is denied to the extent it asserts that Bishop’s testimony and report should be excluded
pursuant to Rules 26 and 37.
B. Rule 702 Analysis
1. Legal Standard
Federal Rule of Evidence 702, which memorializes the Supreme Court’s landmark case,
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), provides the basic
framework for the admissibility of expert testimony:
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
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(d) the expert has reliably applied the principles and methods
to the facts of the case.
FED. R. EVID. 702. The United States Court of Appeals for the Third Circuit has held that “Rule
702 embodies a trilogy of restrictions on expert testimony: qualification, reliability and fit.”
Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003) (citations
omitted). “[T]he district court acts as a gatekeeper, preventing opinion testimony that does not
meet the requirements of qualification, reliability and fit from reaching the jury.” Id. In this role,
the district court is not the finder of fact but must focus on the methodology of the expert in
order to “satisfy itself that ‘good grounds’ exist for the expert’s opinion.” United States v.
Mitchell, 365 F.3d 215, 244 (3d Cir. 2004) (citing Daubert, 509 U.S. at 590); In re TMI
Litigation, 193 F.3d 613, 713 (3d Cir. 1999) (district court should not conflate “its gatekeeping
function with the fact-finders’ function as the assessor of credibility”). “The District Court has
broad discretion in determining the admissibility of evidence, and ‘considerable leeway’ in
determining the reliability of particular expert testimony under Daubert.” Walker v. Gordon, 46
Fed. Appx. 691, 694 (3d Cir. 2002) (citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,
152-53 (1999)).
“Rule 702, which governs the admissibility of expert testimony, has a liberal policy of
admissibility.” Kannankeril v. Terminix Intern., Inc., 128 F.3d 802, 806 (3d Cir. 1997). The party
that proffers the expert testimony is not required to prove to the court that the expert’s conclusion
is correct. See Mitchell, 365 F.3d at 244 (citing Ruiz-Troche v. Pepsi Cola Bottling Co., 161 F.3d
77, 85 (1st Cir. 1998) (citations omitted)). The focus is on the process and methodology
employed by the expert. Id. The Third Circuit has listed several factors it deems “important” in
assessing an expert’s methodology:
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(1) whether a method consists of a testable hypothesis; (2) whether
the method has been subject to peer review; (3) the known or
potential rate of error; (4) the existence and maintenance of
standards controlling the technique’s operation; (5) whether the
method is generally accepted; (6) the relationship of the technique
to methods which have been established to be reliable; (7) the
qualifications of the expert witness testifying based on the
methodology; and (8) the non-judicial uses to which the method
has been put.
In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 742 n.8 (3d Cir. 1994).
The party proffering the expert must only demonstrate that the expert arrived at his or her
conclusion in a reliable manner. Id.; see also Kannankeril, 128 F.3d at 809 (“The trial judge must
be careful not to mistake credibility questions for admissibility questions.”). Finally, the party
asserting the admissibility of the proffered testimony has the burden to demonstrate, by a
preponderance of the evidence, that the opinions are based on “good grounds.” Kannankeril, 128
F.3d at 807.
2. Application to Bishop’s Opinions
As the Third Circuit discussed in Schneider ex rel. Estate of Schneider v. Fried, to
succeed on their motion to disqualify Plaintiff’s expert witness, Defendants must show that
Bishop’s opinion fails to meet the requirements set forth in Rule 702, namely qualification,
reliability, and fit. 320 F.3d at 404. Having fully considered Plaintiff’s proffer of Bishop’s expert
testimony, the Court finds that Bishop’s opinions are not admissible as expert opinions under
Daubert. Nevertheless, the Court finds that Bishop may offer her observations of Vilkofsky as a
lay witness. The Court now turns to its evaluation of the parties’ arguments, starting with the
expert’s qualifications.
a. Qualifications:
As to Defendants’ challenge to Bishop’s qualifications to render her opinion regarding
Vilkofsky’s alleged anxiety or depression, an expert witness must demonstrate “specialized
10
knowledge” in the area of her testimony. See Waldorf v. Shuta, 142 F.3d 601, 625 (3d Cir. 1998)
(“Rule 702 requires the witness to have ‘specialized knowledge’ regarding the area of
testimony.”); Pineda v. Ford Motor Co., 520 F.3d 237, 244 (3d Cir. 2008) (“It is well settled that
“[q]ualification requires ‘that the witness possess specialized expertise.’”) (quoting Schneider,
320 F.3d at 404).
This requirement has been interpreted liberally, and the Third Circuit Court of Appeals
has explained that a “broad range of knowledge, skills, and training qualify an expert.” Waldorf,
142 F.3d at 625 (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d at 741-42). “This liberal
policy of admissibility extends to the substantive as well as the formal qualifications of experts.”
Pineda, 520 F.3d at 244 (citing In re Paoli R.R. Yard PCB Litig., 35 F.3d at 741). Further, “it is
an abuse of discretion to exclude testimony simply because the trial court does not deem the
proposed expert to be the best qualified or because the proposed expert does not have the
specialization that the court considers most appropriate.” Id. (quoting Holbrook v. Lykes Bros.
S.S. Co., 80 F.3d 777, 782 (3d Cir. 1996)).
Defendant SLS does not dispute that, based upon her L.P.C. license and C.A.A.D.C.
certification, Bishop may be qualified to perform a DSM diagnosis or render expert testimony on
addiction issues. (Docket No. 127 at 9-10). However, both SLS and Rushmore argue that Bishop
has no specialized knowledge, skill, experience, training or education relating to diagnosing
anxiety or depression and therefore, Defendants argue that providing such a diagnosis is beyond
the bounds of Bishop’s expertise. (Id.). Vilkofsky counters that Bishop is qualified and permitted
to diagnose mental disorders and that she has the qualifications to assess the presence of anxiety
and depression and the cause of those conditions in an individual. (Docket No. 130, at 6).
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While it is true that this is Bishop’s first attempt to be judicially accepted as an expert in
this area, under the liberal standard of admissibility, the Court finds that Bishop has a “broad
range of knowledge, skills, and training” in mental health counseling. As noted above, Bishop is
a licensed professional counselor with experience as a mental health therapist, private therapist,
and as a drug and alcohol counselor. (Bishop Depo. at 13-19, 38). Although it is apparent that
Bishop has focused both her training hours and continuing education on drug and alcohol
counseling (id. at 36-39), Bishop is qualified to perform a DSM-IV diagnosis (id. at 17-18). The
mere fact that Bishop does not have the prior experience that Defendants believe is the most
appropriate does not render her unqualified. See Pritchard v. Dow Agro Scis., 705 F. Supp. 2d
471, 482 (W.D. Pa. 2010), aff’d, 430 F. App’x 102 (3d Cir. 2011) (“That Dr. Omalu is also not
an oncologist or hemopathologist, appropriate specialties in Defendants’ view, and has not
previously treated and/or diagnosed patients with NHL, does not preclude him from testifying as
an expert in this matter.”). These factors more properly bear on Bishop’s credibility and the
weight of her testimony rather than its admissibility. It appears to the Court that the real dispute
between the parties involves Bishop’s failure to perform the type of evaluation she is qualified to
perform, an issue which goes to the reliability of her methodology, as the Court addresses below.
b. Reliability
To be admissible, an expert’s testimony must also be reliable; that is, it “must be based
on the methods and procedures of science rather than on subjective belief or speculation; the
expert must have good grounds for his [or] her belief.” Furlan v. Schindler Elevator Corp., 516
F. App’x 201, 205 (3d Cir. 2013) (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d at 742).
The United States Court of Appeals for the Third Circuit has articulated a series of nonexclusive factors to guide district courts when determining whether an expert’s testimony is
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reliable. In re Paoli R.R. Yard PCB Litig., 35 F.3d at 742 n.8. To this end, Defendants argue that
Bishop’s testimony fails to show: (1) that she used any methodology at all, let alone a method of
testing that was generally accepted, and (2) that the relationship between how the testing was
conducted and the underlying method was adequate. (Docket No. 125, 127). Specifically, SLS
argues that even if Bishop is deemed an expert, her methodology was non-existent as she
admitted that she did not follow the normal procedure for diagnosing a patient, which would
have included a detailed history and written diagnostic procedure. (Docket No. 127, at 12).
Because Bishop openly admits that she did not follow the same diagnostic procedures that one
would normally follow in order to properly diagnose a patient (Bishop Depo. at 19-20), SLS
argues that she has not employed the same “intellectual rigor that characterizes the practice of an
expert in the relevant field” as required by Kumho and is not “being as careful as [s]he would be
in h[er] regular professional work.” See Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 942
(7th Cir. 1997). Rushmore likewise argues that Bishop did not use any diagnostics on Vilkofsky
and instead relied on her subjective belief and speculation in forming opinions regarding an
individual whom she has never seen in a clinical setting. (Docket No. 125, at 9). Vilkofsky
counters that Bishop’s opinions “are not of the earth shattering variety” and are “for the most
part common sense.” (Docket No. 130, at 6). Further, Vilkofsky argues that “Bishop’s friendship
with the Plaintiff and the lack of a formal client-counselor relationship between the Plaintiff and
Ms. Bishop are fodder for cross-examination, but these are not factors that exclude Ms. Bishop’s
testimony.” (Id.).
Having reviewed the record in this case, the Court agrees that Bishop’s methods are not
sufficiently reliable and that her proffered expert testimony must be excluded. Despite her
credentials, as well as the fact that she issued a report and was deposed, Bishop admits that she
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did not provide a professional diagnosis or conduct an evaluation of Vilkofsky as she would have
done had she been professionally retained. (Bishop Depo. at 19-20). Instead, to reach her
conclusions, Bishop relied on her observations of Vilkofsky and her discussions with Vilkofsky
over the course of their friendship. (Bishop Depo. at 45-46). Even if Bishop made observations
consistent with her training and expertise, her methodology is plainly unreliable under Rule 702
such that she cannot testify to a reasonable degree of medical certainty with respect to
Vilkofsky’s diagnosis. See Pritchard, 705 F. Supp. 2d 471 (examining the methodology
requirement in depth). It is clear from the record that Bishop did not employ the protocol she
would ordinarily use in her practice to reach conclusions about a patient’s mental state. (Bishop
Depo. at 19-20). In this regard, Bishop specifically admits that she believes that being in a
“therapeutic relationship” with Vilkofsky would be an ethical and personal conflict in light of
their relationship, and that she did not diagnose, examine, evaluate, or obtain and review his
medical records prior to issuing her report. (Id., at 43, 45-46, 50). This method, or lack thereof,
fails the tests for reliability under Daubert. See, e.g., Elcock v. Kmart Corp., 233 F.3d 734, 74546 (3d Cir. 2000) (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 742 n. 8 (3d Cir.
1994)).3
Thus, after reviewing her expert report and deposition testimony, it is this Court’s
opinion that this proposed expert has not employed sufficiently reliable methods in reaching her
conclusions in this case. Therefore, Defendants’ Motions are granted to the extent that they assert
that Vilkofsky’s expert does not meet the reliability prong of the Daubert test.4
In addition, the Court agrees with Rushmore that the Plaintiff’s proposed analogies are unpersuasive, as they raise
more questions than answers.
4
Having concluded that the methodology used by Bishop is not reliable and finding that her proffered expert
testimony must be excluded, the Court need not address the “fit” prong of the Daubert analysis. See Pritchard, 705
F. Supp. 2d at 492.
3
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C. Lay Witness Testimony
Defendants argue that if Bishop is precluded from testifying as an expert witness and if
her expert report is excluded from evidence, Bishop should similarly be precluded from offering
her opinion testimony as that of a lay witness under Fed. R. Evid. 701.
Under Rule 701, “[i]f the witness is not testifying as an expert, the witness’ testimony in
the form of opinions or inferences is limited to those opinions or inferences which are (a)
rationally based on the perception of the witness, (b) helpful to a clear understanding of the
witness’ testimony or the determination of a fact in issue, and (c) not based on scientific,
technical, or other specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 701; see
also Ferris v. Pennsylvania Fed’n Bhd. of Maint. of Way Employees, 153 F. Supp. 2d 736, 745
(E.D. Pa. 2001); Howard v. Rustin, 2008 WL 1925102, at *5 (W.D. Pa. Apr. 30, 2008) (Fischer,
J.). Lay witness testimony under Rule 701 must not drift into an analysis of causation in the
context of a plaintiff’s diagnosis. Montoya v. Sheldon, 286 F.R.D. 602, 614 (D.N.M. 2012)
(citing Ferris, 153 F. Supp. 2d at 744-45).
Here, because her testimony fails the reliability test, Bishop can, at most, comment on her
general interactions with Vilkofsky just as any other fact witness could do. For example, she can
describe Vilkofsky’s mood changes or decreased activities which she witnessed. However,
Vilkofsky’s specific diagnoses and their causation require expert testimony. See Ferris, 153 F.
Supp. 2d at 743-46 (excluding testimony of doctor who was not qualified as an expert as to the
causation of the plaintiff's mental conditions); Villalba v. Consolidated Freightways Corp., 2000
WL 1154073, at *12-15 (N.D. Ill. 2000). Bishop’s testimony will therefore be limited to her
personal knowledge and observations. See FED. R. EVID. 602. The Court notes that Vilkofsky is
also free to testify to these same issues. See, e.g., Ferris, 153 F. Supp. 2d at 746. Thus, to the
15
extent that Bishop has anything to say, the Court has discretion to exclude such testimony in its
entirety as unduly cumulative. See FED. R. EVID. 403.
Finally, counsel for Mr. Vilkofsky shall outline his proffer of Bishop’s testimony, if any,
and confer with opposing counsel and supply the Court with a proposed limiting instruction for
trial.
D. Attorney’s Fees and Costs
Rushmore also seeks reimbursement of its attorney’s fees and costs related to its Motion
as a sanction. (Docket No. 125, at 11). Rushmore argues that “it is overwhelmingly clear that
Bishop cannot qualify as an expert to testify in this matter” and, notwithstanding this fact,
Vilkofsky refused to withdraw the Bishop Letter and testimony, forcing Defendants to incur
unnecessary attorney’s fees and costs associated with moving to disqualify Bishop and her
report. (Docket No. 125, at 11). As a result, Rushmore contends that the Court should impose
sanctions pursuant to FED. R. CIV. P. 11, 28 U.S.C. § 1927, and the Court’s inherent authority to
order sanctions. (Docket No. 125, at 10-14). Vilkofsky does not respond to this request for
attorney’s fees and costs. (Docket Nos. 130, 138). Nevertheless, for the following reasons, the
Court will deny Rushmore’s request.
FED. R. CIV. P. 11 provides in relevant part:
(b) Representations to the Court. By presenting to the court a
pleading, written motion, or other paper—whether by signing,
filing, submitting, or later advocating it—an attorney or
unrepresented party certifies that, to the best of the person’s
knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to
harass, cause unnecessary delay, or needlessly increase the cost of
litigation;
(2) the claims, defenses, and other legal contentions are warranted
by existing law or by a nonfrivolous argument for extending,
modifying, or reversing existing law or for establishing new law;
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(3) the factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary support after
a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence
or, if specifically so identified, are reasonably based on belief or a
lack of information.
FED. R. CIV. P. 11(b). Rule 11(b) requires the signer of a document filed with the court to make
an inquiry into the facts and the law that is “reasonable under the circumstances,” entailing a
reasonable investigation into the facts and a normally competent level of legal research. TEGG
Corp. v. Beckstrom Elec. Co., 2008 WL 5216169, at *2 (W.D. Pa. Dec. 10, 2008) (Fischer, J.)
(citing Zuk v. Eastern Pa. Psych. Inst. of the Med. College of Pa., 103 F.3d 294, 299 (3d
Cir.1996); Simmerman v. Corino, 27 F.3d 58, 62 (3d Cir.1994)). The Court determines the
reasonableness of an inquiry by applying an objective standard. See Garr v. U.S. Healthcare, 22
F.3d 1274, 1278 (3d Cir.1994).
At the outset, the Court notes that Vilkofsky’s motion is procedurally defective under
Rule 11, as there is no evidence that the moving party complied with the safe harbor provisions
of Rule 11 by serving a copy of the motion or details of the prospective sanction motion until
said motion was filed with the Court. See FED. R. CIV. P. 11(c)(2) (stating that a motion for
sanctions “must be served under Rule 5, but it must not be filed or be presented to the court if the
challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected
within 21 days after service”). In addition, Rule 11 requires a representation to the court in the
form of a pleading, written motion, or other paper. FED. R. CIV. P. 11(b). Here, the Bishop Letter
and proffered testimony was not, and was not required to be, presented to the court prior to the
instant motion requesting sanctions under Rule 11. Pritchard v. Dow Agro Scis., 2009 WL
1813145, at *6 (W.D. Pa. June 25, 2009) (Fischer, J.) (citations omitted). These discovery
materials are not “papers” for which Rule 11 sanctions are available in this case. Regardless,
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Rushmore has failed to meet its burden to demonstrate that sanctions under Rule 11 are
appropriate in this case. See FED. R. CIV. P. 11; TEGG, 2008 WL 5216169, at *2-3 (“[T]he mere
failure of a complaint to withstand a motion to dismiss is not enough to establish a Rule 11
violation. . . . the burden of proof and persuasion rests on the party moving for sanctions.”)
(citation omitted).
Rushmore has likewise failed to demonstrate that Plaintiff’s counsel has acted in “willful
bad faith” sufficient to warrant an award of costs, expenses and attorneys’ fees pursuant to 28
U.S.C. § 1927. See Wise v. Washington Cty., 2015 WL 1757730, at *10-14 (W.D. Pa. Apr. 17,
2015) (Fischer, J.) (examining 28 U.S.C. § 1927 requirements in depth); E.E.O.C. v. U.S. Steel
Corp., 877 F. Supp. 2d 278, 290, 287 (W.D. Pa. 2012) (Fischer, J.) (Section 1927 “limits
attorney sanctions to situations in which an attorney has ‘(1) multiplied proceedings; (2) in an
unreasonable and vexatious manner; (3) thereby increasing the cost of the proceedings; and (4)
doing so in bad faith or by intentional misconduct.’”) (citations omitted); Toy v. Plumbers &
Pipefitters Local Union No. 74 Pension Plan, 317 F. App’x 169, 172 (3d Cir. 2009) (same).
“[S]anctions may not be imposed under § 1927 absent a finding that counsel’s conduct resulted
from bad faith, rather than misunderstanding, bad judgment, or well-intentioned zeal.” E.E.O.C.,
877 F. Supp. 2d at 288. Here, there is no evidence that Vilkofsky pursued the expert testimony or
expert report for an improper purpose or in bad faith. Rather, he proffered this testimony to
support damage claims in this litigation. As set forth above, Bishop’s methodology is not
sufficiently reliable for her to provide expert testimony, but she may be called upon to testify as a
fact witness consistent with Rule 701. Hence, the Court will not impose sanctions under 28
U.S.C. § 1927.
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Admittedly, a district court may sanction attorneys under its inherent power when the
conduct is egregious or where the statutory provision is inadequate. Ferguson v. Valero Energy
Corp., 454 F. App’x 109, 114 (3d Cir. 2011) (interpreting In re Prudential Ins. Co. Am. Sales
Practice Litig. Agent Actions, 278 F.3d 175 (3d Cir.2002)). In resorting to inherent authority, a
court should always exercise caution and look to the Federal Rules of Civil Procedure or a
relevant statute prior to such exercise. Pritchard, 2009 WL 1813145, at *9 (citing Chambers v.
NASCO, Inc., 501 U.S. 32, 50 (1991) (noting that courts should generally refrain from resorting
to their inherent authority to impose sanctions when an appropriate rule applies). Because 28
U.S.C. § 1927 could afford relief, which in this instance the Court denied, and the Court does not
find that Plaintiff and his counsel engaged in egregious behavior, the Court will not impose
sanctions under its inherent authority.
VI.
CONCLUSION
The Court finds that the relevant considerations weigh against striking the proffered
expert testimony under FED. R. CIV. P. 26. The Court has now exercised its gatekeeper duties and
finds that Plaintiff’s proffered expert, Theresa Bishop, has not met each of the Daubert
requirements such that her opinions will not be admitted as expert testimony. Specifically, the
methodology used by Bishop in her assessment is so seriously flawed that the proffered expert
testimony does not meet the reliability requirements of Rule 702. Although she may not provide
expert testimony, Bishop may offer her lay opinion of Vilkofsky’s mental health subject to the
limitations proscribed by Rule 701 discussed above. To that end, a limiting instruction will be
given. Finally, the Court denies Defendant Rushmore’s request for an award of attorney’s fees
and costs.
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An appropriate order follows.
/s/ Nora Barry Fischer
Nora Barry Fischer
United States District Judge
Date: June 12, 2018
cc/ecf: All counsel of record.
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