United States District Court, W.D. Pennsylvania
Barry Fischer United States District Judge
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
FACTUAL AND PROCEDURAL BACKGROUND
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).
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).
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 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).
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. (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).
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.).
ALLEGED EXPERT CREDENTIALS
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
13-14). 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).
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).
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).
ALLEGED EXPERT REPORT AND DEPOSITION TESTIMONY
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
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.).
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).
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.
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.
Rule 26 Analysis
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
(iii) any exhibits that will be used to summarize or support
(iv) the witness's qualifications, including a list of
all publications authored in ...