The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ANSUR AMERICA INSURANCE )
COMPANY, )
)
Plaintiff, )
) Case No. 21-cv-59-SMY
vs. )
)
JAMES A. BORLAND and QUINN, )
JOHNSTON, HENDERSON & )
PRETORIOUS, CHTD., )
)
Defendants. )
)
MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Ansur America Insurance Company (“Ansur”) filed this lawsuit alleging legal
malpractice related to a product liability case filed in St. Clair County, Illinois. Ansur claims
Defendants failed to properly manage the defense of the underlying case, resulting in Ansur being
forced to settle for an unsupported and unprecedented amount. Plaintiff’s Motion to Exclude the
Testimony and Reports of Joseph Bleyer and Daryl Douglas (Doc. 202) is now before the Court.
Defendants responded in opposition to the motion (Doc. 205).
Discussion
Federal Rule of Evidence 702 provides for the admission of expert testimony that assists
the trier of fact to understand the evidence or to determine a fact in issue. Fed.R.Evid. 702.
District courts have a “gatekeeping” obligation to ensure that expert testimony is both relevant and
reliable. Fed. R. Evid. 702; Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113
S.Ct. 2786, 125 L.Ed.2d 469 (2003). In that vein, the Court considers: (1) whether the expert is
qualified; (2) whether the expert's methodology is reliable; and (3) whether the expert's testimony
will assist the trier of fact in understanding the evidence or determining a fact in issue. Myers v.
Illinois Cent. R. Co., 629 F.3d 639, 644 (7th Cir. 2010). The party offering the expert testimony
bears the burden of proof as to relevance and reliability. Brown v. Burlington N. Santa Fe Ry. Co.,
765 F.3d 765, 772 (7th Cir. 2014) (citing Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705
(7th Cir. 2009)).
The specific factors identified in Daubert do not necessarily or exclusively apply to all
experts in all cases. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999). The inquiry is
flexible and focuses on the principles and methodology of the expert opinions, not the conclusions
that are generated. Daubert, 509 U.S. at 580. Moreover, “a Daubert inquiry is not designed to
have the district judge take the place of the jury to decide ultimate issues of credibility and
accuracy.” Lapsley v. Xtek, Inc., 689 F.3d 802, 805 (7th Cir. 2012). “If the proposed expert
testimony meets the Daubert threshold of relevance and reliability, the accuracy of the actual
evidence is to be tested before the jury with the familiar tools of “vigorous cross-examination,
presentation of contrary evidence, and careful instruction on the burden of proof.”” Id. (quoting
Daubert, 509 U.S. at 596).
Plaintiff’s Motion to Exclude the Testimony and Reports of Joseph Bleyer
Defendants disclosed Joseph Bleyer as a legal malpractice expert. 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. Client Funding Solutions Corp. v. Crim, 943 F. Supp. 2d 849 (N.D.
Ill. 2013); see also Hall v. Flannery, 840 F.3d 922, 930 (7th Cir. 2016); Landeen v. PhoneBILLit,
Inc., 519 F. Supp. 2d 844, 848 (S.D. Ind. 2007); Webster Bank, N.A. v. Pierce & Associates, P.C.,
2020 WL 616467 *3 (N.D. Ill. Feb 10, 2020) (citing Rivera v. Guevara, 2018 WL3093339 *17-
18 (N.D. Ill. June 22, 2018)).
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.
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. See, Clark v. Takata Corp., 192 F.3d 750, 758 (7th
Cir. 1999); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999).
Here, Bleyer fails 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. In other words, his methodology is nothing more than what
he would have done under the circumstances presented. He does 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.
In sum, Bleyer’s unsupported opinions unreliable. His anticipated testimony will not assist
a jury and are more than likely to lead to confusion and speculation. As such, Plaintiff’s motion
is granted as to Joseph Bleyer.
Plaintiff’s Motion to Exclude the Testimony and Reports of Daryl Douglas
Defendants disclosed Daryl Douglas as an insurance expert. 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.” (Doc. 202, pp. 7-8, citing
Webster Bank, 2020 WL 616467 *4.) And, as was true with respect to Defendants’ tendered expert
Joseph Bleyer, his opinions are unreliable and unsupported.
Douglas’ opinion, that the conduct of Frankenmuth claims personnel breached the standard
of care in the insurance industry, do not appear to be based on any generally accepted standards or
recognized source in the insurance industry. He, like Bleyer, defaults to a “case-by-case” analysis
instead of a measurable standard of care:
…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.”
(Ex. 3 at 37:1-11.) … he opined only what in this case he believed Hebert and
Troester should have done. (Id. at 37:12-38:7.)
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.” (Id. at 46:15-48:8.)
… he simply opined that in this case, the claims managers should have been paying
more attention, primarily because attorney Tom Keefe was the opposing counsel.
(Id. at 48:9-21.)
(Doc. 202, pp. 8-9)
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. Plaintiff’s motion is also granted as to Daryl Douglas.
Conclusion
For the foregoing reasons, Plaintiff's Motion to Exclude the Testimony and Reports of Joseph
Bleyer and Daryl Douglas (Doc. 202) is GRANTED in its entirety.
IT IS SO ORDERED.
DATED: February 23, 2025 fw Coole
STACI M. YANDLE
United States District Judge