Mitchell v. CIT Bank, N.A., et al
Filing
284
MEMORANDUM OPINION AND ORDER. It is ORDERED that Defendants' Motion to Exclude Proposed Expert Testimony of Nelson Locke (Dkt. # 217 ) is hereby DENIED. Signed by District Judge Amos L. Mazzant, III on 4/26/2022. (mcg)
Case 4:14-cv-00833-ALM Document 284 Filed 04/26/22 Page 1 of 15 PageID #: 15991
United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
UNITED STATES OF AMERICA ex rel.
ANDREW MITCHELL, and ANDREW
MITCHELL, Individually,
Plaintiffs/Relator,
v.
CIT BANK, N.A., d/b/a ONEWEST BANK,
and CIT GROUP, INC.,
Defendants.
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Civil Action No. 4:14-CV-00833
Judge Mazzant
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendants’ Motion to Exclude Proposed Expert Testimony of
Nelson Locke (Dkt. #217). Having considered the motion and the relevant pleadings, the Court
finds that the motion should be DENIED.
BACKGROUND
The background of this lawsuit is more thoroughly set forth in the Court’s Memorandum
Opinion and Order on Defendants’ motion for summary judgment (Dkt. #271).
Highly
summarized, this case arises out of allegations made by Relator Andrew Mitchell (“Mitchell”) that
One West Bank (“OWB”)1 violated the False Claims Act (“FCA”) by submitting false claims to
the Government to obtain payment under three different Government loan-modification programs.
These three programs were Treasury’s Home Affordable Modification Program (“HAMP”), the
Department of Housing and Urban Development (“HUD”)’s Federal Housing Administration
(“FHA”) mortgage insurance program (“FHA-HAMP”), and the Department of Veteran Affairs
Unless otherwise specified, OWB refers collectively to Defendants’ CIT Bank, N.A. (d/b/a OneWest Bank) and
CIT Group Inc.
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(“VA”)’s mortgage insurance program (“VA-HAMP”). Mitchell contends that OWB certified to
these agencies that it was in material compliance with relevant laws and regulations, while OWB
knew it was not. These false certifications allegedly caused the government to make payments to
OWB that it would not have otherwise made.
On October 21, 2021, OWB filed the present motion, seeking to exclude Mitchell’s expert,
Nelson Locke, Esq. (“Locke”), from testifying at trial (Dkt. #217). On November 4, 2021, Mitchell
filed his response (Dkt. #227). On November 10, 2021, OWB filed its reply, (Dkt. #231), and on
November 17, 2021, Mitchell filed his sur-reply (Dkt. #238). On December 7, 2021, Mitchell
submitted a letter to the Court, notifying the Court of an error in Locke’s declaration that was
submitted in support of Mitchell’s sur-reply. On the same day, Locke filed a supplemental
declaration, correcting the misstatement (Dkt. #246). On December 8, 2021, OWB submitted a
letter to the Court in response to Locke’s supplemental declaration, arguing that Mitchell’s need
to correct Locke’s misstatements, which Mitchell only did after OWB raised the issue, further
supports the present motion.
LEGAL STANDARD
Federal Rule of Evidence 702 provides for the admission of expert testimony that assists
the trier of fact to understand the evidence or to determine a fact in issue. FED. R. EVID. 702. In
Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court instructed courts to function
as gatekeepers, and determine whether expert testimony should be presented to the jury. 509 U.S.
579, 590–93 (1993). Courts act as gatekeepers of expert testimony “to make certain that an expert,
whether basing testimony upon professional studies or personal experience, employs in the
courtroom the same level of intellectual rigor that characterizes the practice of an expert in the
relevant field.” Kuhmo Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999).
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The party offering the expert’s testimony has the burden to prove that: (1) the expert is
qualified; (2) the testimony is relevant to an issue in the case; and (3) the testimony is reliable.
Daubert, 509 U.S. at 590–91. A proffered expert witness is qualified to testify by virtue of his or
her “knowledge, skill, experience, training, or education.” FED. R. EVID. 702. Moreover, to be
admissible, expert testimony must be “not only relevant but reliable.” Daubert, 509 U.S. at 589.
“This gate-keeping obligation applies to all types of expert testimony, not just scientific
testimony.” Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir. 2002) (citing Kuhmo, 526 U.S.
at 147).
In deciding whether to admit or exclude expert testimony, the Court should consider
numerous factors. Daubert, 509 U.S. at 594. In Daubert, the Supreme Court offered the following,
non-exclusive list of factors that courts may use when evaluating the reliability of expert
testimony: (1) whether the expert’s theory or technique can be or has been tested; (2) whether the
theory or technique has been subjected to peer review and publication; (3) the known or potential
rate of error of the challenged method; and (4) whether the theory or technique is generally
accepted in the relevant scientific community. Id. at 593–94; Pipitone, 288 F.3d at 244. When
evaluating Daubert challenges, courts focus “on [the experts’] principles and methodology, not on
the conclusions that [the experts] generate.” Daubert, 509 U.S. at 595.
The Daubert factors are not “a definitive checklist or test.” Id. at 593. As the Supreme
Court has emphasized, the Daubert framework is “a flexible one.” Id. at 594. The test for
determining reliability can adapt to the particular circumstances underlying the testimony at issue.
Kuhmo, 526 U.S. at 152. Accordingly, the decision to allow or exclude experts from testifying
under Daubert is committed to the sound discretion of the district court. St. Martin v. Mobil Expl.
& Producing U.S., Inc., 224 F.3d 402, 405 (5th Cir. 2000) (citations omitted).
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ANALYSIS
Mitchell retained Locke as an expert to assess “whether the servicing of residential
mortgage loans by [OWB] complied with mortgage loan servicing industry customs, practices and
standards of care, and complied with the requirements of” of MHA Treasury HAMP, HUD’s FHA
Loss Mitigation Program, and the VA Home Loan Guaranty Program” (Dkt. #217, Exhibit 1 at p.
6). In its motion, OWB asserts that Locke’s testimony should be excluded for two main reasons.
First, OWB contends that Locke’s opinions result from unreliable methods “because they hinged
on factors beyond [OWB]’s control, and thus resulted in findings of non-compliance even when
[OWB] did nothing wrong” (Dkt. #217 at p. 7). Second, OWB argues that Locke’s methods were
unreliably applied because his analysis contained egregious errors, his team was inexperienced
and had inadequate time to complete their review, and Locke ignored more than 12 gigabytes of
data that OWB produced (Dkt. #217 at p. 15–17). Further, OWB attacks Locke’s and his team’s
credentials throughout its briefing (Dkt. #217 at p. 14). In response, Mitchell contends that none
of OWB’s arguments support excluding Locke’s testimony. Rather, OWB’s criticisms of Locke’s
report are areas that are best addressed with cross-examination (Dkt. #227 at p. 5). Moreover,
according to Mitchell, OWB’s attacks are premised on “erroneous factual statements and
incomplete characterizations of his testimony” (Dkt. #227 at p. 11).
“When expert testimony has been challenged, it is incumbent upon the court to conduct a
preliminary fact-finding to determine whether the expert is qualified to render the proffered
opinions and whether the substance of the testimony is both reliable and relevant.” Allison v.
NIBCO, Inc., No. 9:02-CV-172, 2003 WL 25685229, at *1 (E.D. Tex. May 21, 2003). The court
must also articulate its basis for admitting expert testimony. See Rodriguez v. Riddell Sports, Inc.,
242 F.3d 567, 581 (5th Cir. 2001). To be reliable, and therefore admissible under Rule 702 of the
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Federal Rules of Evidence, expert testimony as to a scientific, technical or other specialized area
must: (1) assist the trier of fact to understand the evidence or to determine a fact in issue; (2) be
based upon sufficient facts or data; (3) be the product of reliable principles or methods; (4) and
have reliably applied the principles and methods to the facts. FED. R. EVID. 702. “The reliability
analysis applies to all aspects of an expert’s testimony: the methodology, the facts underlying the
expert’s opinion, the link between the facts and the conclusion, et. alia.” Knight v. Kirby Inland
Marine Inc., 482 F.3d 347, 355 (5th Cir. 2007).
The party offering the expert testimony has the burden of establishing by a preponderance
of the evidence that the challenged testimony is admissible. Moore v. Ashland Chem., Inc., 151
F.3d 269, 276 (5th Cir. 1998). It is not necessary for the proponent to prove that the expert’s
testimony is correct, but the proponent must prove the testimony is reliable. Id. The Court
examines OWB’s arguments in turn, beginning with the credentials of Locke and his team. The
Court then will address OWB’s argument that Locke’s opinions result from unreliable methods
and then OWB’s argument that Locke unreliably applied his methodology.
I.
Qualifications of Locke and His Team
“Whether an individual is qualified to testify as an expert is a question of law.” Williams
v. Manitowoc Cranes, L.L.C., 898 F.3d 607, 614–15 (5th Cir. 2018) (citing Mathis v. Exxon Corp.,
302 F.3d 448, 459 (5th Cir. 2002)). Pursuant to Rule 702, “[a] witness who is qualified as an
expert by knowledge, skill, experience, training, or education may testify in the form of an
opinion.” FED. R. EVID. 702; see also United States v. Bourgeois, 950 F.2d 980, 987 (5th Cir. 1992)
(“To qualify as an expert, ‘the witness must have such knowledge or experience in [his] field or
calling as to make it appear that his opinion or inference will probably aid the trier in his search
for truth.’”); Kumho Tire Co., 526 U.S. at 151 (stating that a witness may be an expert even if his
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or her expertise is based purely on experience). Rule 702 does not require “that an expert be highly
qualified in order to testify about a given issue.” Williams, 898 F.3d at 614–15. Indeed, “[a]lthough
an expert’s qualifications may be less-than-sterling, she may still be certified.” Id. For all a Court
must find “are ‘sufficient indicia’ that an individual will ‘provide a reliable opinion’ on the subject
. . . .” Id. at 625 (citing Huss v. Gayden, 571 F.3d 442, 455–56 (5th Cir. 2009)). This is because
“[d]ifferences in expertise bear chiefly on the weight to be assigned to the testimony by the trier
of fact, not its admissibility.” Id.
With that being said, “[a] district court should refuse to allow an expert witness to testify
if it finds that the witness is not qualified to testify in a particular field or on a given subject.”
Wilson v. Woods, 163 F.3d 935, 937 (5th Cir. 1999) (quoting Holbrook v. Lykes Bros. Steamship
Co., Inc., 80 F.3d 777, 781 (3d Cir. 1996)). In making the determination of whether an expert is
qualified, a district court is afforded “wide latitude.” Id. at 936–37 (citing Watkins v. Telsmith,
Inc., 121 F.3d 984, 988 (5th Cir. 1997)).
A. Whether Locke is Qualified to Testify
OWB criticizes Locke’s credentials for several reasons. First, OWB argues that Locke
“lacks the real world experience necessary to qualify as an expert” since he has “never worked for
a mortgage servicer or servicing regulator, and, in his words, has ‘not done much servicing
review’” (Dkt. #231 at p. 5). OWB also criticizes Locke’s specific prior experience with HAMP
(Dkt. #217 at p. 14). Second, OWB contends that Locke has a “tenuous grasp on the rules and
regulations governing [Mitchell]’s claims[,]” which is disqualifying (Dkt. #217 at p. 14).
According to OWB, Locke “has no understanding of key loss mitigation requirements, such as the
difference between Treasury HAMP, FHA loss mitigation, and VA loss mitigation rules” (Dkt.
#231 at pp. 5–6). More specifically, according to OWB, Locke’s analysis on OWB’s compliance
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with Real Estate Settlement Procedures Act (“RESPA”)’s live contact requirement ignores when
the regulation became effective, and his deposition testimony indicates that he did not know that
dual-tracking regulations changed over time (Dkt. #217 at pp. 13–14).
Here, the Court finds that there are “sufficient indicia” that Locke can provide a reliable
opinion as an expert. See Mobility Workx, LLC v. Cellco P’ship, 4:17-CV-00872, 2019 WL
5721814, at *14 (E.D. Tex. Nov. 5, 2019). To begin, Locke has extensive experience performing
HUD compliance reviews (Dkt. #217, Exhibit 1 at pp. 6–7). In his capacity as a mortgage banker,
he ultimately served as the Legal and Compliance Manager for Value Financial, a national,
publicly-traded and HUD-approved lender (Dkt. #217, Exhibit 1 at pp. 6–7). To be sure, since
2005, he has performed or approved HUD FHA Level Compliance post-closing Quality Control
Reviews on at least 5,000 Mortgage Loan files (Dkt. #217, Exhibit 1 at p. 6). Moreover, in his
current role as a consultant, he routinely advises clients on compliance issues in the mortgage
industry (Dkt. #217, Exhibit 1 at p. 6). Thus, it is evident that Locke’s training and real-world
experience make him qualified to serve as an expert witness in this case. See Barbe v. Gov’t Emps.
Ins. Co., No. 4:13-CV-441, 2014 WL 12601572, at *2 (E.D. Tex. June 30, 2014).
Further, though OWB takes issue with Locke’s prior familiarity with HAMP specifically,
“courts routinely reject efforts to artificially narrow the scope of a witness’s expertise in order to
disqualify him or her.” Holcombe v. United States, 516 F. Supp. 3d 660, 685 (W.D. Tex. 2021).
Rather, “[a] lack of specialization should generally go to the weight of the evidence rather than its
admissibility” and “an expert witness is not strictly confined to his area of practice, but may testify
concerning related applications.” United States v. Wen Chyu Liu, 716 F.3d 159, 168 (5th Cir.
2013). As such, though Locke’s experience mostly stems from conducting HUD reviews, this
does not warrant exclusion of his testimony. Indeed, it is evident that Locke has ample experience
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with compliance issues related to the mortgage servicing industry in general. Thus, OWB’s issues
concerning Locke’s prior familiarity with HAMP can be addressed on cross-examination. See Wen
Chyu Liu, 716 F.3d at 168.
Moreover, though OWB argues that Locke “has no understanding of key loss mitigation
requirements” (Dkt. #221 at p. 5) because he tested the same generic criteria for the three programs
at issue though they have key differences, the Court finds this criticism unhelpful to OWB’s
position. For one thing, while OWB points to illustrative examples of differences between the
programs, it fails to explain why Locke’s failure to account for these differences render Locke’s
analysis faulty. See Earl v. Boeing Co., No. 4:19-CV-507, 2021 WL 3140545, at *7 (E.D. Tex.
July 26, 2021). Further, in response to OWB’s argument, Mitchell asserts that the fundamental
requirements of the programs largely overlapped and thus Locke “tested for [OWB]’s compliance
with basic criteria that applied to all three programs” (Dkt. #238 at p. 5). Thus, a closer look
reveals that the parties dispute here concerns the factual assumptions underlying Locke’s report—
namely, whether the three programs shared key loss mitigation requirements. As such, OWB’s
criticism is not a basis for exclusion. See Boeing, 2021 WL 3140545, at *8 (“[E]ven if [Locke]
made factual errors or incorrect assumptions, these go only to the weight, not admissibility, of [his]
testimony.”). Likewise, the Court is unconvinced by OWB’s criticisms of Locke’s analysis of
RESPA and his understanding that the programs’ requirements changed over time. While these
might be sources for cross-examination, these critiques do not show Locke’s opinions are so
fundamentally unsupported that they would not assist the fact-finder in reaching a sound verdict.
Accordingly, the Court finds that Locke has sufficient experience to serve as an expert in this case.
The Court now turns to OWB’s criticisms of Locke’s team.
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B. Whether Locke’s Team Caused Locke’s Review to be Unreliable
OWB argues that Locke’s auditing team was unqualified and inappropriately trained,
which exacerbated the unreliability of Locke’s review (Dkt. #231 at p. 5). In particular, OWB
criticizes Locke’s team of ten field auditors for having “no mortgage servicing experience
whatsoever” (Dkt. #217 at p. 17). Further, OWB attacks Locke’s structure of the loan file review,
contending that Locke gave his team “woefully inadequate time to complete the[] review” and
“incentivized them to move quickly by paying them on a ‘per file’ basis . . . regardless of how
many documents were actually in the file” (Dkt. #217 at p. 17). In response, Mitchell argues that
Locke specially trained every reviewer on his team, and Locke himself performed several
measures to ensure quality control (Dkt. #227 at pp. 8–9).
As with Locke himself, the Court finds that Locke’s auditing team was qualified and did
not cause Locke’s review to be unreliable. Though OWB takes issues with the team’s lack of
mortgage servicing experience, all ten auditors “[had] [] mortgage industry experience” (Dkt.
#214, Exhibit 1 at pp. 51–52). Further, three of the ten auditors had significant auditing experience
in the mortgage-related field and the remaining seven auditors all had experience with processing
or quality control (Dkt. #214, Exhibit 1 at pp. 51–52). Even more so, Locke specially trained every
reviewer and even recorded the training sessions (Dkt. #227 at p. 8). Thus, the team’s prior
experience coupled with Locke’s training rendered his team qualified and competent to conduct
the review. Further, though OWB criticizes Locke for compensating the reviewers on a per-loan
basis rather than an hourly basis and estimating the amount of time it might take to review a loan,
these criticisms are not a basis for disqualification, but rather the proper subject of crossexamination.
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Finding Locke and his team qualified, the Court now turns to OWB’s argument that
Locke’s methodology was unreliable.
II.
Whether Locke’s Methodology Was Reliable
OWB contends Locke’s methods “were unreliable because they hinged on factors beyond
[OWB]’s control, and thus resulted in findings of non-compliance even when [OWB] did nothing
wrong” (Dkt. #217 at p. 7). More specifically, OWB argues that Locke’s methodology in
determining whether a loan was “materially non-compliant” was flawed. For example, OWB
explains that the only three criteria Locke used to determine if a loan was “materially noncompliant” were whether OWB’s “imaged loan documents contained evidence that (i) [OWB]
solicited delinquent borrowers; (ii) [OWB] received financial information from buyers; and (iii)
[OWB] reviewed a ‘checklist containing enough data to justify a mod review for each delinquent
borrower’” (Dkt. #217 at pp. 7–8). But, according to OWB, it had no control over the second or
third criterion because none of the loss mitigation programs at issue “required loan servicers to
submit their financial information to the servicer” (Dkt. #217 at p. 8). In other words, Locke’s
loan review “focused on whether OWB’s imaged loan document repository included certain
documents without analyzing whether the documents should have been there at all” (Dkt. #231 at
p. 2). Thus, OWB argues that “the absence of these documents in [OWB]’s records says nothing
at all about its compliance” because OWB could not “compel borrowers to provide the documents”
(Dkt. 217 at p. 9).
In response, Mitchell asserts that “Locke’s loan review evaluated the contents of the file
and not just one or more specific documents to determine whether [OWB] complied with the
applicable criteria or if a reasonable inference could be made as to program compliance based on
the contents of the file” (Dkt. #227 at p. 12). Thus, Mitchell contends that OWB’s argument is
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“simply incorrect” because “[i]if there was evidence that a borrower refused to submit financial
information to [OWB], [] Locke took that into account” (Dkt. #238 at p. 2). In support of this
contention, Mitchell includes a declaration from Locke stating that he “considered whether the
absence of required documentation was due to reasons purely outside of [OWB]’s control” (Dkt.
#238, Exhibit 1 at p. 1). Further, in the declaration, Locke further explicitly states that “[i]f there
was evidence in a loan file that a borrower refused to submit necessary information to [OWB] . . .
I took that into account in my analysis” (Dkt. #238, Exhibit 1 at p. 1).
Here, the Court finds that OWB’s disagreement with Locke’s methodology does not
warrant the exclusion of Locke’s testimony. The core of OWB’s argument is that Locke’s
methodology was unreliable because he considered only whether certain documents were present
in OWB’s imaged loan files “even though documents were absent solely due to borrower’s failure
to provide them” (Dkt. #231 at p. 1). However, Locke’s declaration makes clear that this was not
the case—that Locke considered whether the absence of required documentation was due to
reasons purely outside of OWB’s control (Dkt. #238, Exhibit 1). Moreover, according to Locke’s
deposition testimony, the contents of the file, not just one or more specific documents, were
evaluated to determine whether OWB complied with the applicable criteria or if a reasonable
inference could be made based on the contents of the file (Dkt. #227, Exhibit F at 122:12–15).
Thus, Locke considered alternative explanations for the missing documents. See Bray Int’l, Inc. v.
Computer Assocs, Int’l, Inc., No. Civ.A H-02-98, 2005 WL 2405924, at *6 (S.D. Tex. Sept. 29,
2005) (rejecting argument that expert failed to account for alternative explanations because his
testimony made “clear” that the expert considered alternative factors). As such, this is not a case
in which an expert failed to consider alternative explanations, and OWB’s reliance on U.S. ex rel.
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Barron v. Deloitte & Touche, LLP, No. SA-99-CA-1093, 2008 WL 7136870, at *4 (W.D. Tex.
Aug. 20, 2008) is misplaced.
To be sure, like many of OWB’s other arguments, OWB’s concerns go to the weight, not
the admissibility, of Locke’s testimony. Unquestionably, “an expert should be excluded if it is
based on assumptions that are so unrealistic and contradictory as to suggest bad faith or to be in
essence an apples and oranges comparison” Boeing, 2021 WL 3140545, at *8 (internal quotation
and citations omitted). But otherwise, as is the case here, OWB’s “suggestion of alternate
explanations is a matter properly reserved for cross-examination and does not go to the
admissibility of [Locke’s] expert opinion.” Kreuzer v. City of Houston, No. H-03-5073, 2005 WL
5977653, at *2 (S.D. Tex. Apr. 8, 2005).
OWB also argues that Locke’s test for “evidence borrower lost home” yielded misleading
results (Dkt. #217 at p. 9). According to OWB, evidence that a borrower lost his or her home is
not evidence of OWB’s non-compliance because OWB was required to evaluate certain borrowers
for “a potential short sale and deed-in-lieu of foreclosure . . . which are legitimate foreclosure
prevention options but also result in borrowers losing their homes” (Dkt. #217 at p. 9). Thus,
evidence that a borrower lost his or her home “could be equally consistent with the conclusion that
[OWB] complied with all program requirements, but the borrower did not qualify for” a lossmitigation option that allowed the borrower to keep his or her home (Dkt. #217 at p. 9). In
response, Mitchell contends that, contrary to OWB’s argument, whether a borrower lost his or her
home “was not used to determine whether [OWB]’s servicing for any given loan was or was not
compliant” (Dkt. #227 at p. 14). Rather, Locke’s tracking of OWB’s ability to keep borrowers in
their homes was “relevant to whether [OWB]’s services gave the government the benefit of the
HAMP bargain by keeping borrowers in their homes” (Dkt. #238 at p. 4).
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Again, the Court finds these grounds insufficient to warrant exclusion. While the Court
agrees with OWB that evidence a borrower lost his or her home is not evidence of OWB’s noncompliance, this data point was not used to determine OWB’s non-compliance. Rather, as Mitchell
explains, it was used to determine whether the government received the benefit of the HAMP
bargain. Thus, OWB’s argument for exclusion is misplaced. OWB’s criticisms go to the weight
to be given Locke’s testimony, not the admissibility, and may be raised through vigorous crossexamination at trial.
Accordingly, the Court finds that OWB’s concerns over Locke’s methodology do not
warrant the exclusion of his testimony. As such, the Court now turns to OWB’s argument that
Locke’s methods were unreliably applied.
III.
Whether Locke’s Methods Were Unreliably Applied
OWB’s final argument is that “Locke compounded the defects in his unreliable
methodology by applying that methodology in an unreliable manner” (Dkt. #217 at p. 15). OWB
points to “egregious errors” in Locke’s analysis that show his methodology was applied unreliably
(Dkt. #217 at p. 15; Dkt. #231 at p. 5). And though OWB acknowledges that Locke amended his
opinions and that his supplemental reports address many of the errors, it argues that “fixing a few
anecdotal errors does nothing to address the systematic unreliability underlying his review” (Dkt.
#231 at p. 4). Additionally, OWB criticizes Locke for “ignore[ing] more than 12 gigabytes of data
[OWB] produced that may have altered the results of his file review” (Dkt. #217 at p. 17).
As with OWB’s other arguments, the Court finds that OWB’s concerns go to the weight,
not the admissibility, of Locke’s testimony. Indeed, in performing its gatekeeping role, “[t]he
court is not to focus on the conclusions generated by the expert's methodology.” Nunn v. State
Farm Mut. Auto. Ins. Co., No. 3:08-CV-1486, 2010 WL 2540754, at *4 (N.D. Tex. June 22, 2010).
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Rather, “[t]he validity or correctness of the conclusions is for the fact finder to determine.” In re
Vioxx Prods. Liab. Litig., 401 F. Supp. 2d 565, 574 (E.D. La. 2005). Nevertheless, OWB argues
Locke’s testimony should be excluded because Locke’s “corrections show that the unreliability of
his opinion is pervasive” and his analysis still “remains replete with errors” (Dkt. #231 at p. 5).
However, the Court disagrees, finding that Locke’s purported errors and subsequent corrections
are not so fundamental or pervasive to call into question the reliability of his methodology. Moore
v. Int’l Paint, LLC, 547 F. App’x 513, 516 (5th Cir. 2013) (“[A] few scattered errors in an expert
report are not necessarily grounds for exclusion.”). Of course, OWB is free to cross-examine
Locke regarding the errors, but the errors fail to justify the exclusion of Locke’s testimony. See
Mahli, LLC v. Admiral Ins. Co., No. 1:14-CV-175, 2015 WL 4915701, at *7 (S.D. Miss. Aug. 18,
2015) (“[M]iscalculations and inaccuracies . . . go to the weight of the evidence and not its
admissibility.”).
Likewise, the Court finds that OWB’s criticism that Locke ignored certain data does not
warrant exclusion of his testimony. To be sure, “experts are permitted wide latitude in choosing
what data they rely on in forming their opinions . . . .” United States v. Seale, 600 F.3d 473, 491
(5th Cir. 2010). Here, Locke’s report thoroughly explains which data he considered and why he
did so. Further, though Locke did not use the data in the text files that OWB produced, he did
review the servicing data when it was part of the imaged loan files. Moreover, “[a]s a general rule,
questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned
that opinion rather than its admissibility and should be left for the jury’s consideration.” United
States v. Hodge, 933 F.3d 468, 478 (5th Cir. 2019) (internal quotation marks omitted). Thus,
OWB’s criticisms pertaining to Locke’s focus on OWB’s imaged loan files should be addressed
on cross-examination.
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.
CONCLUSION
It is therefore ORDERED that Defendants’ Motion to Exclude Proposed Expert Testimony
of Nelson Locke (Dkt. #217) is hereby DENIED.
IT IS SO ORDERED.
SIGNED this 26th day of April, 2022.
___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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