Expert

Experience is Enough for Experts

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Webster Bank (“Webster”) sued Pierce & Associates, P.C. (“Pierce”) in connection with its alleged mishandling of a loan collection matter on Webster’s behalf. t issue was the standard of care and whether Pierce breached it.  The United States District Court for the Northern District of Illinois held that the question must be answered based on expert testimony at trial.  However, Pierce moved to strike the testimony of Webster’s expert: G. Patrick Murphy (“Murphy”).  Pierce argued that Murphy, a retired Federal District Court Judge and litigator, was unqualified to speak on the “highly idiosyncratic rules and customs of high volume debt collection practices” and that Murphy’s report failed to show specifically how his experience informed his conclusions.

The Court denied the motion, holding that Murphy was “qualified by knowledge and experience to address the standard of care for Illinois civil litigators.”  Id. at 3.  It explained that “the crux of this case is not about nuances and intricacies” of the underlying matter, but rather “the standard of care for a reasonable attorney practicing in Illinois under similar circumstances.”  Id.

As for Murphy’s report, the Court held that an expert’s reliance on experience, rather than a particular methodology, did not necessarily render his opinion unreliable.  The report was therefore admissible insofar as it explained what the standard of care was.

However, the Court barred any conclusion by Murphy as to whether Pierce violated that standard.  It explained that “Murphy can testify as to the standard of care, what reasonably careful lawyers would have done, and what mistakes Pierce made.  Murphy cannot tell the jury that Pierce violated the standard of care—that is the very question the jury will answer.  It is the jury’s role to determine whether Pierce violated the standard of care, not Murphy’s.”  Id. at 5.

Webster Bank, N.A. v. Pierce & Associates, P.C., No. 16-CV-2522, 2020 WL 616467 (N.D. Ill. Feb. 10, 2020)

(This is for informational purposes and is not legal advice.)

 

 

 

Time Enough to Disclose Experts Even Without a Due Date

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William Feda (“Feda”) represented William Schmid (“Schmid”) in the dissolution of Schmid’s marriage.  At issue in the divorce proceedings were Schmid’s unemployment and ability to pay maintenance and his former wife’s health and ability to work.  The Circuit Court ordered Schmid to pay his wife $1,500 per month or 40% of his gross income, whichever was greater.  Schmid, displeased by the outcome, sued Feda for legal malpractice.  He claimed that Feda’s negligent conduct of the discovery process led to the judgment against him.  Feda moved for summary judgment, asserting that his actions were protected by the judgmental immunity doctrine.  Feda also maintained that even if he should have taken the steps Schmid wanted, Schmid could not prove that their absence was the proximate cause of the judgment against him.  At a hearing on the motion, Schmid argued that the summary judgment was premature since the Trial Court had not yet set a date for disclosure of expert witnesses, though he admitted not raising that issue in his response to the motion.  The motion was granted.

On appeal, Schmid argued that the Trial Court erred in not allowing him sufficient time to disclose expert opinions on whether Feda had breached the applicable standard of care.  The Appellate Court disagreed, declining to disturb the Trial Court’s ruling on a discovery matter absent “a manifest abuse of discretion.”  Id. at ¶19.  In this case, although no date for expert disclosure had been set, six years had passed since Feda’s alleged negligence and the hearing on the motion for summary judgment.  Despite that, no plaintiff’s expert was ever disclosed.  Id. at ¶23.  As Feda “was unable to prove his malpractice case without any expert testimony,” summary judgment was affirmed.  Id.

Schmid v. Feda, 2019 IL App (2d) 181005-U

(This is for informational purposes and is not legal advice.)

 

Recent Illinois Case: Jaos v. Vold

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In this unpublished opinion, the First District reversed the Circuit Court’s dismissal of a malpractice complaint pursuant to 735 ILCS 5/2-619.

The court held that there was an issue of fact as to whether the defendant lawyer adequately advised the plaintiff about the effect of liens on a business the plaintiff was purchasing.  The court rejected the defendant’s argument that the issue was so clear that no expert testimony on the issue was required.

Jaos v. Vold, 2016 IL App (1st) 152539-U

(This is for informational purposes and is not legal advice.)

 

Recent Illinois Case: Fox v. Seiden

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The First District held that summary judgment was improperly entered in favor of a malpractice plaintiff. In the underlying case, the malpractice plaintiff was found liable for attorneys’ fees even though she was not a defendant in the only count under which fees could be awarded. The malpractice defendants failed to make this argument in the underlying case.

The First District reversed the trial court’s summary judgment decision because the malpractice plaintiff: (a) failed to offer expert evidence that the malpractice defendants did not meet the standard of care; and (b) possibly was contributorily negligent.

The First District also rejected the malpractice defendants’ argument that summary judgment should have been entered in their favor. The court held that whether the malpractice plaintiff could have appealed the attorneys’ fee award was a question of fact not appropriate for summary judgment. The court similarly held that other proximate cause arguments raised issues of fact.

(This is for informational purposes and is not legal advice.)

Fox v. Seiden, 2016 IL App (1st) 141984

Recent Illinois Case: Hassebrock v. Bernhoft

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The Seventh Circuit affirmed the dismissal of a legal malpractice case. In the district court, the plaintiffs moved for leave to file an expert report after the discovery cutoff. The district court denied the plaintiffs’ motion and dismissed the case for failure to have an expert.

(This is for informational purposes and is not legal advice.)

Hassebrock v. Bernhoft, 2016 WL 860951

Los Amigos Supermarket, Inc. v. Metro. Bank and Trust Co., 306 Ill. App. 3d 115, 713 N.E.2d 686 (1st Dist. 1999)

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Los Amigos Supermarket, Inc. v. Metro. Bank and Trust Co., 306 Ill. App. 3d 115, 713 N.E.2d 686 (1st Dist. 1999)

Spivack, Shulman & Goldman v. Foremst Liquor Store, Inc., 124 Ill. App. 3d 676, 465 N.E.2d 500 (1st Dist. 1984)

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Spivack, Shulman & Goldman v. Foremst Liquor Store, Inc., 124 Ill. App. 3d 676, 465 N.E.2d 500 (1st Dist. 1984) (judgment)

Sorenson v. Fio Rito, 90 Ill. App. 3d 368, 413 N.E.2d 47 (1st Dist. 1980)

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Sorenson v. Fio Rito, 90 Ill. App. 3d 368, 413 N.E.2d 47 (1st Dist. 1980)

Smiley v. Manchester Ins. & Indemn. Co. of St. Louis, 71 Ill. 2d 306, 375 N.E.2d 118 (1978)

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Smiley v. Manchester Ins. & Indemn. Co. of St. Louis, 71 Ill. 2d 306, 375 N.E.2d 118 (1978)

First Nat. Bank of LaGrange v. Lowrey, 375 Ill. App. 3d 181, 872 N.E.2d 447 (1st Dist. 2007)

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First Nat. Bank of LaGrange v. Lowrey, 375 Ill. App. 3d 181, 872 N.E.2d 447 (1st Dist. 2007)