BENTON - Jurors at U.S. district court didn’t decide whether attorney James Borland of Springfield committed legal malpractice in St. Clair County but they heard fascinating testimony from him and from the lawyer who defeated him, Thomas Keefe III of Swansea.
Keefe testified for two and a half hours in the court of District Judge Staci Yandle on March 12 and Borland testified for five hours on March 13.
Keefe told jurors he wanted to keep Borland on his heels.
“It just seemed to us that the defense wasn’t just on their heels throughout but there had been some kind of, we didn’t know what,” he said. “There had been something that had gone awry behind the scenes.”
Borland told jurors, “I really don’t know as we sit here how St. Clair County works.”
Jurors retired to deliberate on March 18 and after 37 minutes Yandle excused them because the parties had settled.
Keefe’s father Thomas Keefe Jr. filed the underlying suit against Signature Hardware for Helen Miles and Wayne Miles in 2016.
The complaint alleged that Helen suffered injuries from the collapse of a bamboo shower stool she bought at Signature.
The store reported the suit to Ansur America Insurance, a subsidiary of Frankenmuth Insurance, and the insurer retained Borland.
Keefe learned in depositions of Signature employees that they knew of prior collapses.
He moved to pursue punitive damages and St. Clair County Chief Judge Andrew Gleeson granted it.
Gleeson then held Signature liable for Helen’s injuries and set trial on punitive damages.
As trial approached Borland moved to continue it and Gleeson denied the motion.
Borland withdrew as counsel for Ansur and Donald Flack of Armstrong Teasdale negotiated a settlement for $11 million.
Ansur sued Borland and his employers in the Quinn Johnston firm of Peoria in 2021.
Yandle brought the case to trial on March 10.
Jurors learned that under Signature’s policy Frankenmuth would cover the first $1.5 million and reinsurer Enstar would cover the next $8.5 million.
For judgment exceeding $10 million reinsurer Gallagher would cover $1 million, bringing the policy limit to $11 million.
Keefe took the stand on March 12 and told Ansur counsel Robert Sweeney of Chicago, “The trial was going to be my dad’s birthday present.”
Sweeney asked who manufactured the shower stool and Keefe said Taizhon in China.
Sweeney asked why he didn’t sue them and Keefe said, “Why would I?”
“That’s a whole lot of legwork and a whole lot of hoops,” he said.
He said Chinese defendants rename themselves or dissolve, and said that he likely would have sued an American manufacturer.
Sweeney asked if he needed a deposition of Helen’s surgeon David Raskas and Keefe said discovery depositions are not admissible at trial.
“I could call him any time to find out what he would say,” he said.
Sweeney asked if a defendant can request an independent medical examination.
Keefe said yes and Sweeney asked if he challenged requests.
“No,” Keefe said. “You get one under the rules.”
Sweeney asked if Borland ever filed for one and Keefe said no.
Sweeney asked when he found out Signature people knew about prior incidents and Keefe said late 2017.
Sweeney asked how that impacted the way he proceeded.
“That’s a fact that has the potential to dramatically increase the value of your case and increase the amount of money you hope to be able to get your client compensated,” he said.
Sweeney asked if Signature Hardware denied knowledge of prior defects and Keefe said they made one report of a broken bench in 2016.
Sweeney asked if his third amended complaint sought punitive damages and Keefe said 20 to 30% of the stools failed.
“They didn’t pull the product,” he said. “They sold it to our lady.”
Sweeney asked if he opposed Borland’s motion to continue trial and Keefe said he did.
“I already had my pattern,” he said. “I had punitive damages.
“I had a very good case against a big corporation that’s not from Southern Illinois who I didn’t think the jury was going to like a lot.
“I didn’t want to give him more time. I wanted to keep him on his heels.
“There was no conceivable set of circumstances wherein our client walked into a courtroom and came out with a zero, none.”
Sweeney asked about Signature witnesses who said they had knowledge and Keefe said, “This was the president of the company. This was the CEO.”
Sweeney asked if he agreed to mediate and Keefe said yes.
Sweeney asked who mediated and Keefe said Lloyd Cueto, a former St. Clair County judge.
Sweeney asked what happened and Keefe said they offered five hundred thousand.
“We weren’t there very long,” he said.
He said his father asked somebody from Signature, outside the mediation session, where the other lawyers were.
He said it seemed weird there was only one.
“The guy said what do you mean,” he said.
“He just had kind of a look of confusion on his face and it was at that point that we recognized that it was officially an 11 million dollar case.”
Keefe said insurers typically do not insure against punitive damages and that creates conflict.
“When we’re trying to elicit both liability evidence and punitive evidence the insurance company wants there to be punitive evidence,” he said.
He said Signature wants compensatory evidence because they don’t have to pay that.
He said the same lawyer can’t represent both because any evidence adduced on behalf of one would harm the other.
He said an insurer in a conflict will provide a lawyer to the insured at the insurer’s expense.
He said their only way to solve their problem was to pay the policy limits.
He said he was going to bring forth the conflict and air out the dirty laundry in open court.
Sweeney asked what evidence or witnesses for Signature concerned him and he said none.
Sweeney asked again about the conversation outside mediation and Keefe said his father asked where the other lawyer was.
“Then he just said you are effed,” he said.
Sweeney asked if that was the end of the mediation and Keefe said it was.
Sweeney asked what he demanded at that point and Keefe said 20 million.
Sweeney asked if it settled for 11 and Keefe said it did.
On cross examination, Borland’s counsel Laura Beasley of Belleville asked Keefe if the man at mediation was Borland.
Keefe said no.
Beasley asked if he would ever have taken less than two million and Keefe said, “Oh god no.”
Beasley asked if he’d have taken less than $4 million.
Sweeney stood and asked Yandle to strike the $2 million question.
Beasley told Yandle that at deposition Keefe said he would never have taken less than four.
Beasley said she could use it for impeachment and Yandle said, “You can’t use it for impeachment if I say it’s irrelevant.”
Borland took the stand the next day and testified he practiced 34 years at Quinn Johnston.
Sweeney asked if there was no conflict of interest at the outset and Borland said correct.
Sweeney asked if the conflict must be disclosed to Frankenmuth as soon as it’s known and Borland said no.
“I cannot advise of any conflict if it would prejudice a client,” he said.
“That’s an ethical rule of Illinois which is the law.”
Sweeney asked if he represented both Signature and Ansur and Borland said, “I did until the conflict arose.”
Sweeney asked when it arose and Borland said when punitive damages were alleged.
Sweeney asked if punitive damages were filed in July 2018 and Borland said yes.
Sweeney asked if there was a conflict at that point and Borland said, “I don’t believe technically conflict starts until there is an active complaint on file.”
Sweeney said the complaint was amended Jan. 31, 2019 and Borland said, “Now there is a potential conflict between the carrier and the policyholder.
“I do represent both of them at that point but I cannot divulge any information and any facts that would injure the policy holder.”
“The policy holder becomes my client from that point forward.”
He said he didn’t think he had an ethical duty to Frankenmuth at that point.
Sweeney asked if he sent Ansur a termination letter and Borland said he did not.
Sweeney asked if he called and said he couldn’t represent them anymore.
“I did not because to do so would have injured my policy holder,” Borland said.
Sweeney asked what if he just quit the whole case.
“I can’t imagine a more destructive thing I could have done to my remaining client, the policy holder,” Borland said.
He said he couldn’t disclose any fact that would hurt the policy holder.
Sweeney said it wasn’t disclosing a fact but letting them know he didn’t represent them.
Borland said, “I think that’s a fact.”
Sweeney asked if the ethical rule wasn’t a case and Borland said it was an opinion.
Sweeney asked if it was by a bar association and Borland said the state bar association.
He asked if he told Signature Hardware he didn’t have conflict?
“I had no conflict with Signature,” he said.
Sweeney asked if Ferguson bought Signature Hardware and Ferguson used Flack and Borland said yes.
Sweeney asked if he could have told Signature they could hire Flack and have Ansur pay for it.
Borland said he would have violated the law and Illinois ethical rules have the status of law.
Sweeney asked if he billed more after discovering the conflict than before and Borland said, “I think that’s probably accurate.”
Sweeney produced an affidavit Borland provided about the manufacturer in 2018 and said, “This is the affidavit that gets your client out of the case?”
Borland said potentially.
Sweeney asked if he could get Taizhou’s address and Borland said he didn’t know.
“Mister Keefe described this yesterday but here it is in front of our face,” Sweeney said.
He asked if Signature would like the compensatory piece to be way bigger because Ansur would pay it.
Borland said, “Presumably yes.”
Sweeney said, “And they would like the punitive piece, your client, to be way smaller if not nothing because then Ansur won’t be able to say I’m not paying, right?”
Borland said that’s what Ansur would want.
Sweeney asked if a Signature employee said their conduct was inexcusable.
Borland said, “He definitely testified to that in his deposition.”
Sweeney asked if he was a good person to talk to before deposition.
Borland said, “He was never going to say that. That’s nothing we discussed. He took that upon himself to say that during the deposition and there it was.”
Sweeney returned to Borland’s motion to continue trial and said, “You thought that because all these depositions got pushed back, all these doctors’ depositions got pushed right up to the trial date, that judge Gleeson would kick the trial date further out?”
Borland said, “I certainly did.”
Sweeney asked if surgeon Raskas could say a lot of Helen’s pain was a result of the fall in the shower as opposed to chronic pain before.
Borland said doctors were on the fence about tying problems to underlying conditions.
Sweeney said, “You could have sought judge Gleeson’s help to get that deposition if you weren’t getting cooperation, right?”
Borland said, “Those are possibly things I could have done.”
Sweeney said, “But you didn’t.”
Borland said, “They would have never worked.”
Sweeney asked if Keefe tried to keep him on his heels.
Borland’s counsel John Duffy of Chicago stood and said, “Your honor, sidebar please.”
Yandle said, “Nope. Go ahead Mr. Sweeney.”
Borland said, “Tommy wouldn’t let me contact the doctors. I would have been in front of judge Gleeson in a second if I would have tried that.”
That was when he said he didn’t know how St. Clair County works.
Yandle called lunch break.
When jurors returned Sweeney read a letter Borland sent to Ansur four days before a hearing on the motion to continue.
His letter advised Ansur that he didn’t understand how trial would occur in light of the fact that no evidence depositions were scheduled.
Sweeney asked Borland if he told Gleeson no evidence depositions were scheduled.
“I think it was the first thing right off the bat when he heard this,” Borland said. “That trial’s not getting moved.”
Sweeney asked if he thought he’d be ready for trial.
He said he didn’t need evidence depositions and Keefe would have needed them.
Sweeney asked why he didn’t understand trial would go forward and Borland said, “I didn’t think Tommy had scheduled any.”
Sweeney said, “Lo and behold, Tommy got them scheduled?”
Borland said, “Yes he did.”
Sweeney asked when he learned punitive damages could be $10 million and Borland said, “It’s when I was down there when I saw people who practice down there.”
Sweeney asked if it was $10 million or more and he said, “That’s what I was hearing.”
Sweeney asked if he sent an assessment to Signature and he said no.
Sweeney read a letter Borland sent to Frankenmuth after the third amended complaint sought punitive damages not only for prior knowledge but also for failure to produce email.
He asked Borland if he tried to dismiss damages for email and Borland said he did.
Sweeney said, “You weren’t successful?”
Borland said, “I was not successful. Tommy misunderstood where the emails were coming from.”
He said he hoped to discuss it in front of the judge.
Sweeney said, “This is another mistake you believe the judge made?”
Borland said, “I believe that’s correct.”
Sweeney said, “Did Tommy tell you he wouldn’t go forward with it?”
Borland said, “We didn’t have a specific conversation about this particular count but I certainly understood that Tommy, after the case was settled, was going to streamline what he went after.”
Sweeney said, “After the case was settled?”
Borland said, “Tommy and I have had conversations about this case.”
Sweeney said, “After he got 11 million dollars?”
Borland said, “After he got 11 million dollars.”
Sweeney asked if he told Signature they might be on the hook for punitive damages as a result of something he did.
Borland said, “I didn’t say that because I didn’t believe they would be potentially on the hook.”
On cross examination, Duffy asked Borland if he needed an expert and he said he didn’t.
He said the jury might not like the expert or the defense.
“Mr. Keefe would have had no problem talking to the jury about how much Mr. Borland just paid this guy to come up with his opinion,” Borland said.
Sweeney asked why he didn’t recommend a vocational expert and he said their expert based his opinions on faulty information.
Sweeney returned to events after the settlement and said, “The guy who just got 11 million said to you hey, don’t worry about it, I was never going to do it?”
Borland said that was correct.
Sweeney said, “He never told you he’d get rid of counts that involved you?”
Borland said, “No, I think that’s the conversation that we had.”
Sweeney said, “That one was later as well?”
Borland said, “Yes, after he had been paid.”
Sweeney said, “Do you always call him Tommy?”
Borland said, “Most of the time.”
Sweeney asked who was going to be his first witness and Borland said he was going to bring Signature people in.
Sweeney said, “They’re not going to say something good, right?”
Borland said, “They’re going to say something very good with respect to the punitive damages they were seeking.”
He said they were good people who weren’t acting maliciously.
“They got caught up in a problem,” he said.
Sweeney asked if they would say they had knowledge of breaks but they’re nice people.
Borland said, “I’d have done it much better than that but that’s the message.”
Sweeney asked if he relied on Tommy to get depositions done and he said, “I adhered to Tommy’s prohibition from me contacting doctors.”
Sweeney asked if he waited for Tommy to get dates for him and he said that was correct.
Borland’s testimony ended and jurors went home.