Banking Expert Witness Testimony Allowed in Part

Plaintiff sued defendants related to loan and mortgage documents.  Plaintiff hired a Banking Expert Witness to provide expert testimony.  Defendants filed a motion to exclude, which was granted in part and denied in part by the court.

Facts:  This case (CIBC INC. v. GRANDE VILLAGE LLC et al – United States District Court – District of New Jersey – June 22nd, 2018) deals with a contract matter involving loan and mortgage documents, emerging from a real estate development in New Jersey.  In order to prove their case, the plaintiff hired Alan Fellheimer (Banking Expert Witness) to provide expert witness testimony.  The defendants have filed a motion to exclude the testimony of these experts.

Discussion:  The defendants argue that Fellheimer’s testimony should be excluded because he 1) improperly declares numerous legal opinions and opines on intent and state of mind; 2) is unqualified to provide expert testimony because is more of a commercial litigator than a banker; and 3) provides unreliable testimony.

The defendants allege that Fellheimer contains legal conclusions, which are not allowed under Daubert.  In addition, they allege that Fellheimer opines on the state of mind of the plaintiff’s employees.  The court agrees with the defendants here, stating that it will not allow Fellheimer to draw legal conclusions in his testimony.  The court opines  that Fellheimer’s testimony consists of opinions on sound banking customs, but also legal conclusions regarding breaches of loan documents by the defendants.  In addition, he opines on the collective state of mind in the treatment of the loans.

The defendants also argue that Fellheimer is not qualified to provide expert opinions in this case because is he first and foremost a commercial litigator.  The court disagrees, stating that Fellheimer is appropriately qualified to testify as an expert on sound banking practices.  The court notes that Fellheimer was Chairman and CEO of two financial institutions and that banking is not his only area of expertise does not make his testimony in this case inappropriate.   The court also opines that Fellheimer’s deposition makes it clear that he has experience in arranging loan agreements with borrowers and concludes that any arguments about Fellheimer’s qualifications go to the weight of the evidence, not their admissibility.

The defendants also argue that Fellheimer’s testimony should be excluded because his testimony is based on an incomplete record.  While the plaintiff’s admit that Fellheimer did not not review all of the materials in this case, he did review a substantial amount.  The court opines that this is not a basis to exclude his testimony.  The court opines that Fellheimer considered enough facts and data and that any arguments related to reliability go to the weight of the evidence and not the admissibility.

Conclusion:  The motion to exclude the expert witness testimony of Alan Fellheimer is denied in part and granted in part.