Plaintiff Ansur America Insurance Company (“Ansur”) filed this lawsuit alleging legal malpractice related to a product liability case filed in St. Clair County, Illinois after Defendants, James A. Borland and Quinn, Johnston, Henderson & Pretorous CHTD failed to properly manage the defense of the underlying case, resulting in Ansur being forced to settle for an unsupported and unprecedented amount.
Plaintiff alleged that Defendants did not meet the standard of care in representing Plaintiff in a tripartite relationship, where Plaintiff insured a company that sold the Underlying Plaintiff a shower stool that broke, causing her to fall and dislodge hardware recently placed by a surgeon in her spine.
Defendants disclosed Joseph Bleyer as a legal malpractice expert witness and Daryl Douglas as an insurance expert witness.
Plaintiff filed a motion to exclude the testimony of Defendant’s experts Bleyer and Douglas.
Legal Malpractice Expert Witness
Joseph A. Bleyer is managing partner in the law firm of Bleyer and Bleyer, Marion, Illinois which is a law firm practicing extensively in litigation and defense in tort/negligence claims, constitutional claims of rights and litigation and defense of municipalities in both Illinois and the United States Supreme Court. He graduated from Southern Illinois University in 1986 and is presently licensed in the State of Illinois, United States Supreme Court, United States Court of Appeals for the Seventh Circuit, United States District Court for Central Illinois, and United States District Court for the Southern District of Illinois.
Insurance Expert Witness
Daryl Douglas spent 20 years as the senior vice president and claims manager at national primary and excess carriers and international reinsurers. During that time, Douglas managed the medical malpractice and general liability exposures for insured hospitals, physicians, and nursing homes, across the country. He counseled insurers and reinsurers on liability and coverage issues, and successfully settled hundreds of catastrophic cases, both before and after trial.
Douglas has built a national reputation handling some of the nation’s largest and most challenging mass actions and achieving highly regarded results along the way.
Discussion by the Court
Plaintiff’s Motion to Exclude the Testimony of Joseph Bleyer
Bleyer is an attorney who has practiced law since 1986. He has never handled a legal malpractice case and has no particular knowledge, experience or training in the area of legal professional responsibility.
While Bleyer has a great deal of legal experience, neither his report nor deposition testimony connect the dots between his generalized legal experience and the bases for his opinions and conclusions in the “often specialized and complex matters of professional responsibility”, including the applicable standard of care.
Moreover, the Court finds that Bleyer’s conclusions and opinions do not meet the Daubert standards for reliability. While Bleyer lists thirteen opinions in his report, his first opinion accurately summarizes the remaining twelve:
“Based upon my experience and my review of the above transcripts and documents, I have formed the opinion, to a reasonable degree of professional certainty, that James Borland and Quinn, Johnston, Henderson & Pretorious Chtd. (collectively, ‘Defendants’) met the standard of care. Defendants did not breach their fiduciary duties required by Illinois attorneys in dealing with both Ansur and Signature.”
The Court held that Bleyer failed to provide a sufficient basis and support for his opinions that the Various Defendants met the standard of care. Although given several opportunities to do so in his deposition, Bleyer failed to identify a measurable standard of care or the source of what he believes the standard of care is. Instead, his opinions are based solely upon his professional judgment, to be applied on a “case-by-case” basis.
Plaintiff’s Motion to Exclude the Testimony of Daryl Douglas
Douglas is a licensed attorney who has had practiced in an insurance claims department and has had various roles in the insurance coverage and defense fields. While Douglas has a both legal and practical experience in the insurance claims industry, as Plaintiff correctly notes, “he simply opines that he would have acted differently, without offering any analysis of ‘how his experience informs his conclusions’ or sufficiently linking ‘his expertise to his opinions’ as Daubert requires.”
The Court held that Douglas defaults to a “case-by-case” analysis instead of a measurable standard of care. For instance, when asked what the standard of care was, he said “I think the standard of care depends upon the liability and exposure and circumstances and facts of each case.” When asked, repeatedly, how he would define a “high exposure” case that would necessitate additional attention from claims managers, he finally said, “there are number of things that create exposure to the insurance company that could result in a future payout, and they are going to be different in each case.”
At bottom, Defendants have failed to meet their burden of demonstrating that Douglas’ proposed testimony is the product of reliable principles and methods. Therefore, the Court finds that his testimony will not assist the jury in understanding the evidence or determining a fact in issue in this case.
Held
The Court granted the Plaintiff’s motion to exclude the testimony of Joseph Bleyer and Daryl Douglas.
Key Takeaways:
- When an expert’s opinions are grounded solely on his experience, those opinions must be based on sufficient facts, data, and relevant standards, and must be the product of methodology that is generally accepted in the expert community. Bleyer’s methodology is nothing more than what he would have done under the circumstances presented. He did not cite to or attempt to apply the Rules of Professional Conduct or any other identifiable source for the applicable standard of care in his report or testimony.
- Defendants have failed to meet their burden of demonstrating that Douglas’ proposed testimony is the product of reliable principles and methods because Douglas defaults to a “case-by-case” analysis instead of a measurable standard of care.
Case Details:
| Case Caption: | Ansur America Insurance Company V. Borland Et Al |
| Docket Number: | 3:21cv59 |
| Court: | United States District Court, Illinois Southern |
| Order Date: | February 23, 2025 |
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