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Sykes v. RBS Citizens N.A.

United States District Court, D. New Hampshire

October 28, 2015

Lewis B. Sykes, Jr.
RBS Citizens, N.A., et al. Opinion No. 2015 DNH 201

Lewis B. Sykes, Jr., pro se, Elizabeth J. Ireland, Esq., Andrea Lasker, Esq., Robert E. Murphy Jr., Esq. Thomas J. Pappas, Esq., Elizabeth T. Timkovich, Esq.


Joseph DiClerico, Jr. United States District Judge

Lewis B. Sykes, Jr. is proceeding pro se against certain banks and mortgage providers, alleging claims that arose from the defendants’ involvement in the circumstances surrounding the foreclosure sale of Sykes’s home in 2009. Sykes moves to exclude the defendants’ expert report on the grounds that it does not comply with the requirements of Federal Rule of Evidence 702 and that it was not timely produced. The defendants object to the motion.

As the defendants point out, the court previously granted their motion for leave to make late disclosure. Sykes did not then and does not now contend that the defendants were not diligent in their efforts to make timely disclosure or that he has suffered any prejudice as a result of the delay. Therefore, the issue of late disclosure has been resolved and cannot be raised now as a reason to exclude the defendants’ expert report.

Sykes also contends that the report provided by the defendants’ expert, Dr. Anita Boss, does not meet the requirements of Rule 702. The deadline for challenging experts was August 31, 2015. Sykes’s motion was filed on October 5, 2015, which is more than a month late. Sykes does not seek leave to file a late challenge or explain why he did not file a motion within the time allowed. See Fed.R.Civ.P. 16(d)(4).

Even if the motion to exclude Dr. Boss’s report had been timely, however, it would not succeed on the merits. Much of the motion addresses matters that are not material to Rule 702.[1]In response, the defendants have shown that the report meets the Rule 702 requirements.

A. Standard of Review

Under 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 if” the witness’s opinion “will help the trier of fact to understand the evidence or to determine a fact in issue” and if the opinion is reliable. Even when a witness’s opinion meets the requirements of Rule 702, however, it may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. United States v. Tetioukhine, 725 F.3d 1, 6 (1st Cir. 2013). The party who is the proponent of the expert opinion bears the burden of showing that it is admissible. Id.

B. Dr. Boss’s Opinion

The issue to be addressed by experts at this stage of the case is whether Sykes was mentally incompetent to the extent necessary to toll the statute of limitations under RSA 508:4, RSA 508:8, and federal law. As requested by Sykes’s former counsel, Dr. Eric G. Mart provided a psychological report based on his evaluation of Sykes. The defendants retained Dr. Anita Boss to review and comment on Dr. Mart’s deposition, clinical notes, psychological test data, collateral information, and evaluation report. In her expert report, Dr. Boss concluded:

Dr. Mart offered testimony that placed the greater weight on [Sykes’s] personality characteristics and how they interfered with his ability to work with several attorneys. He did not establish that the defendant suffered from a mental illness that impaired his capacity to engage legal representation or pursue his claim. To the contrary, Dr. Mart offered substantial information to indicate that Mr. Sykes had a clear perspective on what he wanted to achieve. Incapacitation, or substantial impairment, due to symptoms of a mental illness or mental disability, present during the claimed time frame, was not established through Dr. Mart’s report or testimony.

Dr. Boss offers opinions about Dr. Mart’s conclusions but does not provide her own evaluation of Sykes’s mental status.

C. Qualifications

Dr. Boss has a Psy. D. degree in clinical psychology. She is board certified in forensic psychology and is a licensed clinical psychologist. She is the sole proprietor of Clinical & Forensic Consulting, P.L.C., and, in that capacity she has done criminal and civil forensic psychological evaluations and clinical psychological evaluations. Dr. Boss has been qualified as an expert by courts in Virginia, Maryland, and the District of Columbia. She has taught courses in personality ...

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