In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 14-2943

ORVIL DUANE HASSEBROCK and

EVELYN HASSEBROCK,

Plaintiffs-Appellants,

v.

ROBERT G. BERNHOFT, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 10-CV-0679-NJR-DGW — Nancy J. Rosenstengel, Judge.

____________________

ARGUED APRIL 6, 2015 — DECIDED MARCH 7, 2016

____________________

Before POSNER and SYKES, Circuit Judges, and SIMON, Chief 

District Judge.*

SYKES, Circuit Judge. Orvil and Evelyn Hassebrock sued 

their former attorneys and accountants for professional malpractice, but they waited until after discovery closed to file 

 * Of the Northern District of Indiana, sitting by designation.
2 No. 14-2943

their expert-witness disclosure. They belatedly moved for an 

extension of time, but the district court denied the motion 

and disallowed the expert. Without expert testimony, the 

Hassebrocks could not prove their claims against either the 

attorneys or the accountants. The court entered summary 

judgment for the defendants.

On appeal the Hassebrocks insist that the judge should 

have applied the disclosure deadline specified in 

Rule 26(a)(2)(D) of the Federal Rules of Civil Procedure rather than the discovery deadline set by court order. They also challenge the judge’s summary-judgment ruling.

We affirm. The disclosure deadline specified in 

Rule 26(a)(2)(D) is just a default deadline; the court’s scheduling order controls. And it was well within the judge’s discretion to reject the excuses offered by the Hassebrocks to 

explain their tardy disclosure. Finally, because expert testimony is necessary to prove professional malpractice, summary judgment was proper as to all defendants.

I. Background

A. Factual Background

Orvil Hassebrock and his wife, Evelyn, hired the Bernhoft Law Firm in 2005 to help with a host of legal problems. 

Most seriously, Orvil was then the subject of a federal criminal tax investigation.1 The Hassebrocks also believed they 

had a potential civil claim for investment losses in a compa-

 1 Orvil Hassebrock was ultimately found guilty, sentenced to 36 months 

in prison and 36 months of supervised release, and ordered to pay a fine 

along with almost $1 million in restitution. We affirmed his prison sentence and remanded for a clarification on the restitution order. United 

States v. Hassebrock, 663 F.3d 906 (7th Cir. 2011).
No. 14-2943 3

ny called Semper Libera and a claim against a previous set of 

lawyers over fees withheld from a settlement recovery.

In 2008 the Hassebrocks became dissatisfied with the 

firm’s attorneys and fired them. In 2010 Orvil filed this suit

against the firm in federal court, invoking the court’s diversity jurisdiction. He initially proceeded pro se. Several years 

later he retained counsel, and in 2013 counsel filed an

amended complaint adding Evelyn as a plaintiff and multiplying the number of defendants.

We take the following factual narrative from the amended complaint, remembering of course that these are only allegations. The first group of defendants is the Bernhoft Law 

Firm and two of its attorneys, Robert G. Bernhoft and Robert 

E. Barnes.2 The second group of defendants are accountants:

John C. Noggle; Noggle’s firm, John C. Noggle, CPA, Inc.;

and Tim D. Brewer. The accountants came into the picture 

when the Bernhoft Firm hired Noggle to assist in preparing 

the Hassebrocks’ delinquent tax returns. The Hassebrocks 

later complained about the quality of Noggle’s work, so 

Bernhoft asked Brewer to help instead. The Hassebrocks 

were dissatisfied with his work too.

The Hassebrocks allege that the defendants failed to file

accurate tax returns on their behalf, resulting in hundreds of 

thousands of dollars in penalties, interest, and legal and accounting fees. They also allege that the attorney defendants 

dropped the ball on the Semper Libera claim and the claim 

about the settlement proceeds. 

 2 An additional attorney was named in the amended complaint but was 

never served.
4 No. 14-2943

The amended complaint states six claims for relief: (1) a 

negligence claim against all defendants; (2) a breach-ofcontract claim against all defendants; (3) a legal malpractice

claim against the law firm and the attorneys; (4) a claim for 

breach of fiduciary duty against the accounting firm and the 

accountants; (5) a claim for negligent misrepresentation 

against the accountants; and (6) a claim against the accountants for aiding and abetting the torts of the attorneys.

B. Procedural History

The substance of this appeal focuses largely on discovery 

deadlines, so we’ll sketch the relevant procedural history in 

some detail. The case was litigated in fits and starts because 

Orvil was initially pro se and the case was twice judicially 

reassigned.

When Orvil filed his pro se complaint—on September 2, 

2010—the case was initially assigned to Judge William 

Stiehl. It pended for nearly two years while the Hassebrocks 

secured counsel, which occurred sometime in late 2012. 

Newly retained counsel did not amend the complaint until

March 2013. The defendants then moved to dismiss, and on 

February 2, 2014, the case was reassigned to Judge Phil 

Gilbert. By order dated May 2, 2014, Judge Gilbert granted 

the motion in part and denied it in part. Two weeks later (on 

May 19) the case was reassigned to Judge Nancy 

Rosenstengel.

As relevant here, the district court’s local rules provide 

that “[t]he cut-off date for all discovery, including experts and 

third parties, shall not be later than 115 days prior to the first 

day of the month of the presumptive trial date.” Uniform 

Trial Practice and Procedures, SDIL-LR Forms Appendix 
No. 14-2943 5

at ii-iii (Dec. 2009); Timetable and Deadlines Under Federal 

Rules and Civil Justice Reform Act, SDIL-LR at v (Dec. 2009)

(emphasis added). On March 16, 2012, while Orvil was still 

pro se, the court clerk issued a scheduling order setting

September 2013 as the presumptive trial month. Consistent 

with the local rules, this order established a discovery cut-off 

date by reference to the presumptive trial month:

The cut-off date for all discovery, including 

experts and third parties, shall not be later than 

115 days prior to the first day of the month of 

the presumptive trial date. Disclosure of experts and discovery with reference to experts 

and other discovery dates will be set according 

to the Joint Report of the Parties following their 

initial meeting or at the schedule and discovery 

conference before the Magistrate Judge.

On August 20, 2013, the clerk rescheduled the presumptive trial month to December 2013. This order also scheduled

a Rule 26(f) pretrial and discovery conference and instructed 

the parties to submit a joint report and proposed scheduling 

order. 

A motion to reschedule the presumptive trial date followed, and the parties thereafter produced a joint report 

proposing this schedule for discovery and motions deadlines:

5. Expert witnesses shall be disclosed, along 

with a written report prepared and signed 

by the witness pursuant to Federal Rule of 

Civil Procedure 26(a)(2), as follows: 

Plaintiff’s expert(s): June 15, 2014.
6 No. 14-2943

Defendant’s expert(s): August 15, 2014. ...

6. Depositions of expert witnesses must be 

taken by:

Plaintiff’s expert(s): August 15, 2014.

Defendant’s expert(s): October 15, 2014. ...

7. Discovery shall be completed by November 1, 2014 (which date shall be no later 

than 115 days before the first day of the 

month of the presumptive trial month). ...

8. All dispositive motions shall be filed by 

December 15, 2014 (which date shall be no 

later than 100 days before the first day of 

the month of the presumptive trial month).

On September 18 the district court reset the presumptive 

trial month to September 2014. That timeframe obviously 

didn’t mesh with the schedule proposed by the parties in 

their joint report. It’s not entirely clear why the parties’ proposed schedule was rejected, but it’s reasonable to assume 

that the court simply wanted to get the case back on track 

and move it along more quickly.

The next discussion of discovery deadlines occurred on 

January 17, 2014, during a conference with Magistrate Judge 

Donald Wilkerson. At the conclusion of that conference, 

Judge Wilkerson entered the following minute order: 

Discovery shall be completed by 5/10/2014. 

Dispositive motions due by 5/25/2014. The parties are reminded that they may, pursuant to 

Federal Rule of Civil Procedure 29, modify discovery dates occurring prior to the close of dis-
No. 14-2943 7

covery, by agreement, without the Court’s involvement, provided that neither the discovery

cutoff and dispositive motion deadlines nor the 

settlement conference date are affected.

In March 2014 the defendants moved to stay discovery 

until the motions to dismiss were resolved. The Hassebrocks

filed an opposition to the motion on March 6, explaining that

they fully intended to comply with the discovery deadline. 

They further explained that 

[t]o comply with the January 17, 2014, Order 

setting deadlines ... , Plaintiffs have calendared 

events and expended thousands of dollars 

preparing. The latest of those events will be the 

final selection of an expert witness which will 

likely occur in the days to come after the depositions in Chicago next week.

The magistrate judge declined to stay discovery.

Discovery then proceeded, with some hiccups. The defendant Robert Bernhoft did not make himself available for 

deposition until some 13 days after the May 10 deadline for 

completion of discovery, following a hearing in which the 

magistrate judge ordered him to appear. In addition, on 

April 9 the Hassebrocks asked the court to allow them to 

disclose the name of their expert witness without the expert’s report as required by Rule 26(a)(2)(B) of the Federal 

Rules of Civil Procedure. They explained:

Although the Hassebrocks have engaged their 

expert witness, he is awaiting the release and 

then review of IRS transcripts for tax years 

1994–2008 in order to begin calculating ex-
8 No. 14-2943

pected damages, among other disclosures 

which his written report must provide. Because the Hassebrocks believe that information 

will be soon forthcoming, the delay will be 

minimal, and well before the discovery cutoff 

of May 10, 2014, set by this Court.

The court did not rule on this motion, and the May 10 

discovery deadline came and went. The Hassebrocks did not 

disclose either their expert’s name or his report before the

cutoff, as they said they would. Instead, on May 13—after

discovery closed—they filed a new motion identifying their 

expert but asking the court to allow additional time to disclose the expert’s report. This motion stated, in part:

The Hassebrocks acknowledge that pursuant 

to this Court’s Local Rules, the disclosure of 

the identity of the expert and report are generally due no later than 115 days before the first 

day of the month of the presumptive trial date. 

Yet, the Hassebrocks seek an additional enlargement of 20 days, or until May 30, 2014, to 

file their expert’s report.

At a hearing on May 14 and by written order on May 15, 

the magistrate judge denied both the April 9 and May 13 

motions. The Hassebrocks told the judge that they “were relying upon the 90-day prior to the trial month set forth in 

Rule 26.” As relevant here, Rule 26(a)(2)(D) provides that 

“[a]bsent a stipulation or a court order, [expert witness] disclosures must be made ... at least 90 days before the date set 

for trial or for the case to be ready for trial.”
No. 14-2943 9

The magistrate judge rejected the Hassebrocks’ argument:

[T]he Court will take some responsibility here 

that we didn’t have in the discovery order a

deadline for experts, but we did have a discovery cutoff and a dispositive motion deadline. 

And don’t know how -- I just don’t understand 

how you could figure that you could disclose 

experts after the close of discovery or the dispositive motion deadline. That just -- I mean 

even if the rule said that, it doesn’t make sense, 

does it? That just doesn’t make common sense.

... 

The Court has set a deadline on a discovery 

cutoff, and for you to make an assumption that 

you could do things after that discovery cutoff 

without leave of court just doesn’t make common sense to me.

The Hassebrocks also argued that their tardiness should 

be excused because they had difficulty gathering the funds 

to pay an expert witness. The magistrate judge criticized

them for not raising this concern earlier and denied their belated request to extend the discovery deadline based on excusable neglect.

The Hassebrocks appealed these rulings to the district 

judge. While the appeal was pending, they filed their expert 

report on May 28 and amended it on May 30.

In the meantime, the defendants moved for summary 

judgment. As we’ve noted, on May 19 the case was reassigned to Judge Rosenstengel. On August 18, 2014, she held 
10 No. 14-2943

a hearing to address the appeal of the magistrate judge’s rulings and the motions for summary judgment. After clarifying the facts surrounding the expert-witness disclosure, 

Judge Rosenstengel upheld the magistrate judge’s May 15 

order, excluded the Hassebrocks’ expert witness, and granted the motions for summary judgment. She found no error 

in the magistrate judge’s rulings regarding expert disclosure. 

On the merits she concluded that without an expert witness, 

the Hassebrocks would be unable to establish the standard 

of care owed to them by either the attorneys or the accountants. Without an expert the Hassebrocks had no case, so the 

judge entered summary judgment for the defendants.

II. Discussion

The Hassebrocks primarily challenge the exclusion of 

their expert witness. In the alternative, they argue that even 

without an expert witness, at least some of their claims remain viable and should not have been resolved against them 

on summary judgment.

We review discovery-related orders for abuse of discretion. Jones v. City of Elkhart, 737 F.3d 1107, 1115–16 (7th Cir. 

2013). When, as in this case, the district judge rules on a discovery matter based on an appeal from a magistrate judge’s 

decision, the judge’s discretion is constrained: A district 

judge may reverse a magistrate judge’s discovery ruling only 

when it is “clearly erroneous or contrary to law.” 28 U.S.C. 

§ 636(b)(1)(A); see also Jones, 737 F.3d at 1115–16 (reviewing 

for abuse of discretion the district court’s affirmance on 

clear-error review of a magistrate judge’s quashing of a subpoena).
No. 14-2943 11

The Hassebrocks’ primary contention is that the expertwitness disclosure deadline was actually June 3, 2014, not 

May 10, 2014. They insist that the district court should have 

applied the expert-witness disclosure deadline specified in 

Rule 26(a)(2)(D) rather than the discovery deadline set by 

court order.

This argument is easily dismissed. Among other discovery requirements, Rule 26 requires parties to disclose the 

identity of any expert witness they intend to present at trial, 

together with “a written report—prepared and signed by the 

witness—if the witness is one retained or specially employed

to provide expert testimony in the case.” FED. R. CIV.

P. 26(a)(2)(A), (B). The rule also sets a default deadline for 

the required disclosures:

Time to Disclose Expert Testimony: A party 

must make these disclosures at the times and 

in the sequence that the court orders. Absent a 

stipulation or a court order, the disclosures must 

be made:

(i) at least 90 days before the date set for trial or 

for the case to be ready for trial ... .

FED. R. CIV. P. 26(a)(2)(D)(i) (emphasis added).

The default deadline in the rule does not apply in this 

case because there was a court order setting a discovery

deadline. As we’ve explained, on January 17, 2014, the magistrate judge ordered that “[d]iscovery shall be completed by 

5/10/2014” and referred to that date as the “close of discovery.” The Hassebrocks make much of the fact that the order 

didn’t say that “all discovery shall be completed” by that 

date, but that hardly matters. The addition of the word “all” 
12 No. 14-2943

would have been superfluous. Indeed, in their April 9 motion asking for leave to disclose their expert without an accompanying report, the Hassebrocks made it clear that they 

understood the May 10 deadline as the final date to conclude

all discovery: They promised to disclose their expert’s report 

“well before the discovery cutoff of May 10, 2014.”

The Hassebrocks’ May 13 motion requesting an after-thefact extension of time reinforces the point. Rule 6 provides 

that when a request for extension of time is made after an 

expired deadline, “the court may, for good cause, extend the 

time ... if the party failed to act because of excusable neglect.” FED. R. CIV. P. 6(b)(1)(B); see, e.g., Satkar Hospitality, 

Inc. v. Fox Television Holdings, 767 F.3d 701, 707 (7th Cir. 

2014) (discussing the requirements for excusable neglect). 

The Hassebrocks advanced an argument for excusable neglect; they explained that they had difficulty raising the 

funds needed to pay an expert witness. So there was no misunderstanding here. The Hassebrocks clearly grasped that 

the May 10 deadline applied to all discovery.

If a party doesn’t make a timely and complete expertwitness disclosure, the expert’s testimony ordinarily can’t be 

presented at trial:

If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), 

the party is not allowed to use that information 

or witness to supply evidence on a motion, at a 

hearing, or at a trial, unless the failure was 

substantially justified or is harmless.

FED. R. CIV. P. 37(c)(1).
No. 14-2943 13

As the district judge saw it, the Hassebrocks’ delay was 

neither substantially justified nor harmless. The judge noted

that the Hassebrocks could have raised the issue of their financial constraints much earlier, before the discovery deadline lapsed, but instead their April 9 motion assured the 

court that they would provide the necessary expert disclosures “well before” the May 10 deadline. The judge also noted that reopening discovery would prejudice the defendants

because the case was old and had already moved to the 

summary-judgment stage. Reopening discovery would 

cause further delay and require the defendants to prepare 

new motions on potentially different grounds. This reasoning is sound in all respects. We find no abuse of discretion.

On the merits our review is de novo. Zuppardi v. WalMart Stores, Inc., 770 F.3d 644, 649 (7th Cir. 2014). All claims

in this case sound in professional negligence (i.e., negligence 

and malpractice) or are duplicative or derivative of the 

claims for professional negligence.

To prove a professional negligence case under Illinois 

law,

the established standard of care ... is stated as 

the use of the same degree of knowledge, skill 

and ability as an ordinarily careful professional 

would exercise under similar circumstances. ... 

The standard recognizes that lay jurors are not 

equipped to determine what constitutes reasonable care in professional conduct without 

measuring the actor’s conduct against that of 

other professionals.
14 No. 14-2943

Advincula v. United Blood Servs., 678 N.E.2d 1009, 1020–21 (Ill. 

1996). Moreover, “in professional negligence cases, ... the 

plaintiff bears a burden to establish the standard of care 

through expert witness testimony.” Id. at 1021.

A legal malpractice claim thus requires expert legal testimony to establish the attorney’s professional standard of 

care, with a narrow exception for “common knowledge” situations. When the “common knowledge or experience of lay 

persons is extensive enough to recognize or infer negligence 

from the facts, or ... an attorney’s negligence is so grossly 

apparent that a lay person would have no difficulty appraising it,” a plaintiff can proceed to trial without expert testimony. Hatchett v. W2X, Inc., 993 N.E.2d 944, 963 (Ill. App. Ct. 

2013) (internal quotation marks omitted); accord Ball v. Kotter, 

723 F.3d 813, 821 (7th Cir. 2013).

The standard of care for accountants is established in the 

same manner as it is for attorneys—with expert testimony. 

See generally Bd. of Trs. of Cmty. Coll. Dist. No. 508 v. Coopers & 

Lybrand, 803 N.E.2d 460, 468 (Ill. 2003) (Illinois law holds accountants “to the same standard as surgeons or any other 

professional service providers.”). So the defendants are entitled to summary judgment unless the common-knowledge 

exception applies.

The Hassebrocks say that they should at least have the 

opportunity to prove that the attorneys wholly failed to pursue a claim related to their investment losses in Semper 

Libera, which they contend is a breach of duty sufficiently 

obvious as to fit within the common-knowledge exception.

There are two problems with this argument. First, the

Hassebrocks failed to raise it in their cursory three-page response to the summary-judgment motion in the district 
No. 14-2943 15

court—or at the motion hearing, for that matter. That constitutes a waiver. See C & N Corp. v. Gregory Kane & Ill. River 

Winery, Inc., 756 F.3d 1024, 1026 (7th Cir. 2014) (arguments 

not made in response to summary-judgment motion are 

waived). 

Even if the argument was not waived, however, the

Hassebrocks failed to support it in this court with anything 

more than abstract generalities. Surviving a motion for 

summary judgment requires showing a genuine dispute of 

fact sufficient to establish the need for a trial. See FED. R. CIV. 

P. 56(a), (c); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) 

(“[T]he nonmoving party [is required] to go beyond the 

pleadings” to survive summary judgment.). The 

Hassebrocks point to no evidence to support their allegations of negligence on the Semper Libera claim. To the contrary, the only facts of record on this point come from the 

attorney defendants, who direct us to evidence showing the

Hassebrocks’ allegations to be false. According to Bernhoft’s 

affidavit, he told the Hassebrocks that the Semper Libera 

claim—valued at a little over $50,000 (at best)—was not 

worth pursuing in light of the likely expense of litigation, so 

he recommended instead that they deduct the loss on their 

tax return (which, incidentally, they did). This evidence is

uncontradicted. The common-knowledge exception does not 

apply. The absence of an expert witness is fatal to the negligence and malpractice claims.

The breach-of-contract claim directly incorporates the 

professional duties of care that, as we’ve said, require expert 

testimony:

44. The Hassebrocks entered into a contract 

with attorney Defendants which also created 
16 No. 14-2943

an express[] or implied contractual or mutual 

relationship with accounting Defendants, 

whereby all Defendants agreed to provide 

skilled and specialist ongoing services in the 

areas of accounting, federal tax matters, and 

civil litigation and recovery.

45. All Defendants owed the Hassebrocks a duty to render legal and accounting services and 

perform their obligations and commitments 

within the standard of care of reasonable attorneys, 

law firms, CPA or accounting firms, in the local legal and accounting community.

(Emphasis added.)

Even if the contract claim had been stated in a way that 

was less obviously duplicative of the negligence claims, 

summary judgment remains appropriate. The contracts that 

were supposedly breached are ones for professional services, 

after all. Unlike an ordinary contract dispute, in this context 

the question of breach doesn’t turn on whether the defendants complied with specific terms in the contract but rather 

on whether they rendered professionally competent services

within the standard of care. A plaintiff “cannot be permitted, 

by recharacterizing the claim—whether by calling the [lawyer’s action] a breach of fiduciary obligation or by contending that his contract with the law firm contained an implied 

promise not to commit such [acts]—to get around the requirement of presenting expert testimony.” Hoagland ex rel. 

Midwest Transit, Inc. v. Sandberg, Phoenix & von Gontard, P.C., 

385 F.3d 737, 744 (7th Cir. 2004).
No. 14-2943 17

Similarly, the claim for breach of fiduciary duty against 

the accountants also depends on expert testimony to establish the duty. Fiduciaries owe duties of “candor, rectitude, 

care, loyalty, and good faith.” Miller v. Harris, 985 N.E.2d 

671, 679 (Ill. App. Ct. 2013) (quotation marks omitted). The

claim here is more properly regarded as an accounting malpractice claim because the alleged breach is based on the 

quality of the work performed. See Nettleton v. Stogsdill, 

899 N.E.2d 1252, 1270 (Ill. App. Ct. 2008) (affirming dismissal of breach-of-fiduciary-duty claim as duplicative with 

malpractice claim). And as we’ve seen, establishing the duty

of care for accountants requires expert testimony.

The claim for negligent misrepresentation alleges that 

mistakes in the Hassebrocks’ income-tax filings are attributable to the negligence of the accountants. The Hassebrocks 

concede that summary judgment on this claim is appropriate 

if they can’t use their expert.

The final claim is a derivative one for aiding and abetting 

the various breaches of duty by the others. The Hassebrocks 

are unable to establish any breach of duty for the reasons 

we’ve already explained. The claim for aiding and abetting 

necessarily fails.3

 

3 The Hassebrocks advance two additional arguments for reversal of the 

judgment in favor of Barnes. They say he was not entitled to summary 

judgment because he filed his motion two days after the expiration of the 

deadline for dispositive motions and the district court never explicitly 

granted an extension of time. This argument asks us to remand a case for 

trial when we know the plaintiffs cannot win because they have no expert witness. That would be a waste of time, money, and judicial resources. The Hassebrocks also argue that Barnes was not entitled to 

summary judgment because he did not formally raise the expert-witness
18 No. 14-2943

AFFIRMED.

 

issue in the district court. It’s true that Barnes did not include this argument in his summary-judgment brief; he argued instead that the 

Hassebrocks have no evidence of his personal liability for any professional negligence. At the motion hearing, however, Barnes specifically 

said he joined and adopted the arguments raised by the other defendants 

about the need for an expert witness. That’s enough to preserve the argument.