Reply to JL Psych Report C 1036Joaquin Plaza Rosso, attorney in conventional representation of Mr. Felipe Ossa Guzman and Claro & Co., … C 1036-2021, to this Court I respectfully state:
By presentations of July 26, 2023 (Folio 190) and July 29, 2023 (Folio 191), Ms. Tamara Bustos submitted the psychological expert report ordered by Resolution of Folio 121. The Report was requested in Folio 104 for the purpose of determining whether the plaintiff, Mr. Jorge Lopehandia, had experienced, or not, the extrapatrimonial damages indicated in his lawsuit and rebuttal, which would consist of “the affliction and pain” arising from not being able to obtain “the expected profits arising from the purchase option agreement with MSX.
As will be seen, the Psychological Report (i) was limited to verifying the version that Mr. Jorge Lopehandia has of his “litigious situation” in general, and therefore, (ii) did not adequately comply with the objective for which it was decreed, in such a way that its conclusions refer to facts unrelated to the object of this process.
- THE PSYCHOLOGICAL REPORT WAS STRUCTURED ON THE VERSION OF THE FACTS DELIVERED BY DON JORGE LOPEHANDA, ASSUMING THEM AS TRUE
- The Psychological Report indicates that it was prepared on the basis of four Zoom interviews with Mr. Jorge Lopehandia, in which he explained his “life history, judicial situation and possible alterations in his psychic development”. Departing from the demands of science professed by the expert, the Report did not contrast the results of these interviews with the other records of this trial, nor with those sent by this party.
- This shortcoming, which is evident from reading the Report, since it expressly indicates that the “General Description of the Case” corresponds to that described “by the evaluated”; implying that the most relevant factual circumstances to determine the existence, or not, of psychological damage, its nature, possible causes and the possible responsibility in respect of Mr. Felipe Ossa and Claro & Co., have been determined solely on the merit of what was said by Mr. Jorge Lopehandia. For example:
In relation to the litigation history of Mr. Jorge Lopehandia, since the Report indicates that originates from legal litigation about mining property rights, which Mr. Lopehandia states to own”; and
In relation to the alleged extrapatrimonial damages asserted, since the Report obtains this information directly from the presentation that Mr. Jorge Lopehandia made of the “change that he has experienced throughout his life trajectory by virtue of the damage and the constant threats and hostile behaviors that he has perceived against him and his family by the counterparty”, without it being established that this story has been contrasted with other records.
- This methodology of work meant that the conclusions of the Report related to facts unrelated to those discussed in this trial, in which it must be determined whether the affidavit of Mr. Felipe Ossa of May 31, 2017 incurs, or not, the alleged falsehoods attributed to him, and in the affirmative, whether damage was caused to Mr. Jorge Lopehandia.
- THE PSYCHOLOGICAL REPORT DID NOT COMPLY WITH THE COURT’S ORDER, SINCE IT REFERS TO EVENTS UNRELATED TO THE OBJECT OF THE TRIAL
- The fact that the Psychological Report was prepared from the list of facts of Mr. Jorge Lopehandia, without the fact that this relationship has been contrasted with other records, detracts from the credibility and merit.
- This circumstance flows from the Report itself, which characterized Mr. Jorge Lopehandia, as a subject who presents “a personality structure in the line of a neurotic […] [with] organizational and planning capacity”, which manifests itself in obstinate/willful behavior, which has led to the deterioration of his social and family relationships”, focused “on the judicial situation and demonstrating innocence in the fact of the responsibilities assigned to him”. Moreover, it is worth remembering that on March 17, 2023, Ms. Tamara S. Galleguillos renounced the performance of the ordered psychiatric expertise together with the psychological one, basing her decision on the fact that “it is not possible to rule out a major psychiatric pathology without including in the methodology face-to-face interviews, account of medical history by third parties who live with the evaluated and ideally a social skill.”
- The Report also highlights that Mr. Jorge Lopehandia “has found himself focused – for a long period of time – on seeking – what he considered – the legal truth, “ which has generated him to live with a “constant perception of damage by this environment, hypervigilance, suspicion and distrust of his social context”, which is manifested in “persecutory ideas and deteriorated perception of his personal resources.”
- The foregoing means that the conclusions of the Report refer to facts unrelated to the trial, since the story of Mr. Jorge Lopehandia conflates two levels: (i) the general judicial and litigious situation, which contemplates several contentious and non-contentious trials, in which the national courts have rejected his claims, and (ii) the particular litigation, in which Mr. Jorge Lopehandia has the status of plaintiff and accused Mr. Felipe Ossa of having incurred falsehoods. We reviewed some of the problems this causes in the Report and its conclusions.
- In the first place, the Psychological Report does not analyze the alleged psychological afflictions that Mr. Jorge Lopehandia would have suffered as a result of not having been able to move forward with the option contract with Mountainstar Gold Inc. On the contrary, the Psychological Report results in the existence of a “legal litigation about mining property rights, which Mr. Jorge [Lopehandia] states to own” and concludes that it would be this circumstance that would have generated “emotional damage”.
- It turns out that neither Mr. Felipe Ossa nor Claro & Co. promoted such litigations, they are not litigants in them, nor do they have an interest in their results, so they cannot be considered as causing the alleged damages derived from the existence of such trials. On the contrary, most of these litigations were initiated by Mr. Jorge Lopehandia, or by persons related to him, as evidenced by the judgments and judicial resolutions attached to Folio 114. Furthermore, the conclusions of the Psychological Report are based on a section of the statement of Mr. Jorge Lopehandia in which he alludes to the trial “LOPEHANDIA/COMPANIA MINERA NEVADA SPA, filed before the 5th Civil Court of Santiago, under Rol C 29407-2016. That trial was initiated precisely by Mr. Jorge Lopehandia as stated in the lawsuit, which was attached to Folio 115, in which neither Felipe Ossa nor Claro & Co. are parties.
- In the second place, the Psychological Report was based on a mistaken assessment of the subject matter of such litigation, since none of them was intended to “refute the statements made by the other party, in the case of Claro & Co.” The only litigation in which Mr. Jorge Lopehandia is a party and the veracity of the affidavit of May 31, 2017 signed by Mr. Felipe Ossa is this one, the others had another purpose (as stated in Folio 114) and, in all of them, the claims were fully rejected by judgments that are firm and enforceable.
- In the third place, the Psychological Report refers to the explanations of Mr. Jorge Lopehandia to point out that the “perception of constant threat towards him and his family” experienced by Mr. Jorge Lopehandia would have its origins in “threats and hostile behavior that he has perceived against him and his family by the counterparty”. This perception would also be part of the “emotional damage” that he claims to verify. It appears that such alleged threats are not only ineffective, since none of my clients have engaged in such conduct, but they are also do not form part of the subject matter of the present litigation. At this point, Mr. Jorge Lopehandia – and by extension, the expert – incurs in the confusion of levels that was set out in paragraph 7 above, and thereby contaminates the Conclusions of the Report.
- Finally, the Psychological Report based its conclusions on a non-existent fact, since Mr. Jorge Lopehandia was not sanctioned by the British Columbia Securities Commission. According to the Report, the family circumstances that would have affected Mr. Jorge Lopehandia would have been caused by the BCSC when initiating a process, in the words of the plaintiff: to arrest me in Canada for defrauding my client, they have left me suspended for life and fined because of the assertions of Felipe Ossa Guzman and Claro & Co {…]. This statement is manifestly incorrect, since in the administrative procedure in which the affidavit of Mr. Felipe Ossa was presented, the BCSC did not sanction Mr. Jorge Lopehandia, but Mountainstar and its General Manager, Mr. Brent Johnson, as stated in the respective resolutions submitted in Folio 110.
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In summary, the Psychological Report was prepared on a confused version of the facts delivered by Mr. Jorge Lopehandia, which generated that his conclusions fell on facts other than those that make up the object of this trial, which makes them irrelevant. This is evident in the conclusions of the report in which it is indicated verbatim that Mr. Jorge Lopehandia “evidence emotional damage typical of the judicial situation he is currently going through” and not the fact that he did not obtain profits that he intended to obtain from the option contract he entered into with Mountainstar.
THEREFORE,
To this Court, I respectfully ask: To bear in mind the foregoing.