R.I. Property Wire, LLC. v. Scott A. Linnell and Theresa L. Linnell

This is a summary process action brought to recover possession of the subject premises following a purchase at foreclosure by the Plaintiff. Defendants are the hold over former owners of the premises who remain in possession. The matter is now before the Court (Michaud, J) for a Daubert-Lanigan hearing with respect to the Defendants proposed expert witness Marie McDonnell who was presented to the Court as an expert in mortgage fraud and mortgage loan transactions.

By way of background Ms McDonnell testified that she is the principle for McDonnell Analytics Inc. and is a certified fraud examiner. She received her BA in American Studies and also possesses a real estate license. She further testified that she had reviewed the loan documentation in question and applied the Fremont test to its terms and provided her findings to prior counsel. During her testimony she alluded that while she had not testified in Massachusetts as an expert witness she had testified in a certain Wisconsin case in which fraud was an issue. The Court credits her testimony as to her credentials as a certified fraud examiner.

On cross examination the Defendants pointed out errors in her calculations concerning the reinstatement figures. Defendants then reviewed the Fremont analysis provided by Ms. McDonnell and pointed out flaws in her findings. With respect to the loan documentation and the potential fraud issues, Plaintiff called Scott Linnell who testified that he had personally signed the documents in question to include the Mortgage, Note and Loan Application. Plaintiff also stated that there had been no allegations involving fraud made by the Defendants in their answer or counterclaims.

Plaintiff then questioned Ms. McDonnell on the means and methods utilyzed in her analysis of loan documentation. She stated that she had developed a template to assist in analyzing mortgages and notes but that no other person, entity or peer had reviewed or used her template. Ms. McDonnell also admitted that other than being a certified fraud examiner that she possessed no professional credentials as an accountant, lawyer, actuarial or mathematician. Plaintiff also pointed out that the testimony and information provided by Ms. McDonnell in her other cases where that testimony was accepted by the Court that the testimony was uncontroverted. Finally, Plaintiff presented evidence through Ms. McDonnell's testimony that she had in fact loaned or gifted $2,500.00 to the Defendants to be utilized in retaining counsel for this matter. This act of loaning or gifting money to an individual for legal fees in a case in which the party is expected to be called as a witness while not prohibited by statute, certainly raises concerns in terms of neutral analysis and fact based opinion. The Court credits the information provided by the Plaintiff with respect to the above issues.

The first factor a Court should consider is whether the proffered expert witness testimony will assist the trier of fact in understanding the issues presented. Ms. McDonnell is a certified fraud examiner and undoubtedly possesses a great deal of expertise in the area of fraud detection. The matter before the Court however does not include any counts concerning fraudulent conduct by the Plaintiff or its agents. As a result the Court fails to see the relevance of Ms. McDonnell's testimony. See Commonwealth v Lanigan, 419 Mass. 15 , 26 (1994); Daubert v. Merril Dow Pharmaceuticals, Inc. 509 U.S. 579, 593-94 (1993). See also Commonwealth v Barbosa, 457 Mass. 773 (2010)

Even if the Court considers the expectant testimony to be helpful or relevant the Court must then consider if the witness is qualified as an expert in addressing the relevant issues in question. Ms. McDonnell may indeed be an expert in fraud examination or detection but this case does not involve allegations of fraudulent conduct by the Plaintiff. Allegations of unfair or deceptive behavior are not always fraudulent in nature and nothing the Court has yet seen has risen to that level.

Next the Court considers if the facts in the record are sufficient to enable an expert to offer a considered opinion and not mere speculation. Mr. Linnell testified that he had signed the documentation associated with the loan and thus there does not appear to be any set of facts included in the record which would support an opinion beyond mere speculation that a fraud was perpetrated upon the Defendants.

Finally, is the opinion of the expert based upon upon a body of knowledge, method or means that is reliable. To determine reliability the Court looks for means and methods that are generally accepted by the expert community in general and have been peer reviewed and/or utilized by other professionals in the industry. In the present case Ms. McDonnell testified that she had developed a template to analyze the Defendants' case but that no other peer or organization has used her specific template. See Commonwealth v Patterson, 445 Mass. 626 , 640 (2005)

Finally, while contributing to ongoing litigation by a proposed expert witness may in and of itself not be enough to disqualify Ms. McDonnell, the Court has concerns that the contributions to the costs of the suit before the Court made by Ms. McDonnell would raise issues concerning the reliability of any information provided to the finder of fact being tainted by potential self interest.

Order and Entry of Judgment. For the above-stated reasons, Maria McDonnell shall not be allowed to testify either in person or by expert witnessor by affidavit in this matter.