a witness is preserved despite opposition
Kingsman Funding
In an ongoing case the opposition tried to strike one of the defendant’s professional expert witnesses in a foreclosure case who had proprietary softwear that had determined the loan had serupticiously been sold to a Freddie Mac trust though Chase the original lender still continued to pretend they still owned the loan even to the point of foreclosing. But their motion in opposition to this testimony was denied.
Below is an excerpt from rebuttal to their opposition to show how involved these things can become:
To claim Mr. Esquivel’s testimony is hearsay Plaintiff makes a ridiculous argument that would disqualify their own affiants who swear firsthand knowledge of the ‘Chase business records’. He argues that because Esquivel did not find the information himself in the JP Morgan Chase Bank’s Portal in the loan-level data McCaffrey professionally and proprietarily obtained from Freddie Mac’s own data base, that he makes his report on, but used professional expert proprietary sub-sources (McCaffrey in this instance) to obtain it, his opinion on what the information shows is hearsay. When if this is the standard the same could be said of Plaintiff’s affiants. They didn’t compile the accounting and other data found in the ‘Chase business records’ on Defendant’s loan. Applying this standard, their knowledge of Defendant’s account information would be hearsay as well.
Any professional investigator of any kind is able to do an authoritative investigation not just because of his own ‘specialized knowledge’ of the subject but because of his ‘specialized knowledge’ of, and connections with the sources from whom he may obtain the authoritative information and documentation proprietary to that other professional’s particular field of work that all professional investigators regularly rely on in putting together their investigative reports.
That is no different in this case. As he testifies, he obtained information through Mr. McCaffrey from ‘Freddie and Fannie databases that I cannot get into. And he is the one that provided me
with the loan-level data.’, he [McCaffrey] …..’has the knowledge and the access to get to many of these databases that I do not have access to get into. He is my professional resource for this one, for this case.’ See Esquivel Dep., 68:15-69:25 Docket entry # ?? of record before the court.
From the excerpts of the transcript cited by Plaintiff and by Defendant, it is clearly observable that
Mr. Esquivel has a working professional relationship with Mr McCaffrey whom he uses to obtain this kind of proprietary information on a regular basis and no doubt has similar relationships to obtain other proprietary information on other entirely different subjects as it is needed to be found to do his investigative work. If a report is hearsay because some of what is used to make it comes from other professional sources of proprietary information than the researcher himself with means to obtain it very few people have who are not directly in that field, then the investigator would have to be a professional himself in those fields with access himself in half a dozen or more fields of expertise to the specialized proprietary information only those who are professionals in those fields would have.
If that was the standard necessary to do a professional expert opinion report that is NOT hearsay information then the court knows there would be very few professional expert opinions that are NOT hearsay in some respects..
The affiant’s use of this kind of proprietary information from other professional sources he regularly relies on has not kept Mr. Esquivel’s work from being used and accepted as authoritative documentation and evidence that has repeatedly been admitted in courts across the country on numerous occasions as evidenced in his affidavit and report regarding his credentials. His knowledge in these instances has NOT been treated as hearsay though often obtained from the same or similar sources as Mr. McCaffrey and it should NOT be treated as such by the court here.
Thus, Mr. Esquivel’s testimony is not hearsay and Plaintiff has presented nothing to challenge the credentials he is not a qualified expert for this case and his testimony must be accepted.
Borrower’s opposition demonstrates by a preponderance of the evidence that expert witness Joseph Esquivel relied on admissible evidence or expert method for his opinions.
Those who prepared the record found in the JP Morgan Chase Bank’s Portal in the loan-level data McCaffrey professionally and proprietarily obtained from Freddie Mac’s own data base on which the report is based were self -evidently officers and employees of Chase Bank and/or Freddie Mac as the record was found in the JP Morgan Chase ("CHASE") Bank’s Portal in the loan-level data McCaffrey professionally and proprietarily obtained from Freddie Mac’s own data base, which is also where the record was obtained.
The question may be asked, who prepared the record in the ‘Chase business records’ which Plaintiff’s own affiants have testified to? Whether identified or not they were self-evidently officers or employees of Chase Bank or the information wouldn’t be in the ‘Chase business records’. This argument when applied against Plaintiff’s affiants who have testified concerning the ‘Chase business records’ shows the ridiculousness of it as well when applied as Plaintiff attempts to here regarding Defendant’s affiants. Whether experts or not BOTH SETS OF WITNESSES ARE TESTIFYING WHAT SOMEBODY ELSE DID AND PUT INTO AUTHENTICATABLE RECORD. If in the same situation it is not hearsay for Plaintiff’s witnesses, it cannot be hearsay for Defendant’s witnesses.
Further, Esquivel has relied on an authenticated record available to anyone with the clearance, expertise and status of McCaffrey in the banking and finance industry to have access to this proprietary information. The JP Morgan Chase Bank’s Portal in the loan-level data McCaffrey professionally and proprietarily obtained from Freddie Mac’s own data base is NOT an unknown source and was aquired using a reliable methodology common to authorities in the banking and finance industry. McCaffrey affirms, his investigations and research use “proprietary software to access trust entities and corporate trust documents officially filed with the Securities and Exchange Commission.” Therefore these findings meet the reliability standard of Daubert.
McCaffrey may be considered as a reliable source himself.
The findings are NOT speculation and assertions. Borrower has established the admissibility of Esquivel’s opinions.. Lauzon v.. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001). This is authenticated data forming the basis for the expert’s assumptions or conclusions and is
sufficiently reliable data. In Re. Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 742 (3rd Cir. 1994) (quoting Daubert, 509 U.S. at 589).
Is Plaintiff asserting that McCaffrey is essentially LYING or FABRICATING this data found in the JP Morgan Chase Bank’s Portal in the loan-level data he professionally and proprietarily obtained from Freddie Mac’s own data base?
Again, McCaffrey’s credentials as a professional and an expert in his field are UNCHALLENGED by the Plaintiff.
For him to FABRICATE such data, once exposed, would end his professional career of almost 40 year. Does the Plaintiff actually expect the court to believe McCaffrey has fabricated this data when there is no evidence he has done such a thing in any other case he has testified on?
Such a hypothesis of the plaintiff, if given credence by the court, would establish precedent disqualifying ALL expert testimony of any kind except where the affiant was an officer of the company whose information he was testifying on and even in some of those cases the testimony would be disqualified. This concept is inconceivable, yet it is the only one on which to reject McCaffrey’s findings as being fact, whether they are in his affidavit or that of Esquivel. And none of Plaintiff’s case law on this is applicable.
The testimony here complies with Rule 702 because IT IS based on sufficient facts or data” and this expert “has reliably applied the principles and methods to the facts of the case.” Fed. R. Evid. 702(b), (d). The gatekeeper role under Daubert “entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is . . . valid and of whether that
reasoning or methodology properly can be applied to the facts in issue.” Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 592–93 (1993).
Lastly, Plaintiff points out Borrower’s Opposition is untimely.
The Federal Rules of Evidence provide:
From Rule 103. Rulings on Evidence:
(a) A party may claim error in a ruling to ….exclude evidence ,,,,,, if the error affects a substantial right of the party…
In this instance before the Court, Borrower’s opposing suggestions are based on evidence sought to be admitted into the case as expert opinion that is essential to the proving of the pro se litigant’s case which is his substantial right to do so and thus to exclude argument supporting such essential evidence would be a serious error of the Court to strike Defendant’s opposition to the Daubert motion even though the submission of the evidence and Defendant’s response to the motion are out of time with the court’ schedule and its rules.
Thus the federal rules of evidence support the submission of evidence or witnesses and the pleadings supporting it out of time by a pro se litigant where such evidence or witness is essential to the proving of the pro se litigant’s case as in this case.
An abundance of case law also support the submission of evidence or witnesses and the pleadings supporting it out of time by a pro se litigant where such evidence or witness is essential to the proving of the pro se litigant’s case as in this case.
It is well settled the Courts have recurrently determined the Court may extend the time for filings if the moving party demonstrates “good cause”. Fed. R. Civ. P. 6(b).
The Supreme Court held that whether a party’s failure to meet a deadline is excusable is an equitable determination, “taking account of all the relevant circumstances surrounding the party’s omission.” Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 395 (1993). The Court considers “(1) the danger of prejudice to the non-moving party; (2) the potential impact on the proceedings; (3) the reason for the delay, including whether it was within the party’s control; and (4) whether the party acted in good faith.” Maritz, Inc. v. C/Base, Inc., 4:06CV761 CAS, 2007 WL 2302511, at *2 (E.D. Mo. Aug. 7, 2007) (citing Pioneer, 507 U..S. at 395; Sugarbaker v. SSM Health Care, 187 F.3d 853, 855-56 (8th Cir. 1999)). MARTIN v. HURLEY, et al., USDC, ED Mssouri, Northern Division.
HM COMPOUNDING SERVICES, LLC, and HMX SERVICES, LLC, Plaintiffs, v. EXPRESS SCRIPTS, INC., Defendant. No. 4:14-CV-01858 JAR; UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION, November 8, 2018 (HM Compounding Servs., LLC v. Express Scripts, Inc. (E.D. Mo., 2018).
Missouri Court of Appeals, Southern District, Division Two. STATE of Missouri, Plaintiff-Respondent, v. Jimmie Lee TALLEY, Defendant-Appellant. No. 28624. Decided: August 01, 2008
Thus, an abundance of case law a supports the submission of evidence or witnesses and the pleadings supporting it out of time by a pro se litigant where such evidence or witness is essential to the proving of the pro se litigant’s case as in this case.
Plaintiff points out the trial date is April 15, 2019, and Chase is prejudiced by Nevius’s continued disregard for Scheduling Order deadlines.
But Defendant submits that Plaintiff’s case is prejudiced in no way by time or otherwise. Plaintiff admits in their supplementary responses supporting summary judgment that William McCaffrey’s testimony is already the subject of an objection in summary judgment. If Plaintiff is already challenging these witnesses they are not being blindsided by Defendant’s opposition to the Daubert motion regardless of when it is filed.
The court has made no ruling on the motion at the time of Defendant’s opposition to it.
While the April 15, 2019, trial date is less than two months away Plaintiff is already challenging these witnesses. Again, they are not being blindsided by Defendant’s opposition to the Daubert motion regardless of when it is filed. Therefore it will be no burden to make an additional reply to it if Plaintiff should even choose to do so. Accordingly, the Court should not strike Defendant’s response to the motion for this cause.
These things can be very complicated but there is a way out if you have the truth and the facts on your side. Dr Weatherly
On another very important subject let me add something.
Most people don't understand this, but God was in Christ paying for all our sins on the cross and its over and done and finished and He's not angry with us about anything any more.
The Bible says, He is for us, not against us.
He died in our place to purchase us for Himself and if you'll give in to Him, there's nothing He won't be able to do in your life.
I know, I have been with Him for 40 years.
And when we finally leave this world, we'll live with Him forever,
if we belong to Him.
If you need to think about that or you have someone in mind that does, I'll be glad to talk with them. My number again was 662-489-6554. I just wanted you to know that.
Dr. Weatherly
