### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 14

- 2943
O RVIL D UANE H ASSEBROCK and E VELYN H ASSEBROCK , Plaintiffs

- Appellants
,

v.

R OBERT G. B ERNHOFT , et al.
, Defendant s

- Appellee s

.

____________________ Appeal from the Unit ed States District Court for the Southern District of Illinois

. No. 10

- CV

- 0679

- NJR

- DGW

— Nancy J. Rosenstengel
, Judge

.

____________________
A RGUED A PRIL 6, 2015

— D ECIDED M ARCH 7, 2016

____________________

Before P OSNER and S YKES , Circuit Judges , and S IMON , Chief District Judge

. *

S YKES , Circuit Judge

. Orvil and Evelyn Hassebrock sued their former attorneys and accountants for professional ma lpractice , but t hey waited until after discovery closed to file

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

- 2943

their expert

- witness disclosure. T hey belatedly moved for an extension of time, but the district court den ied the motion and disallowed the expert

. With out ex pert testimony , the Hassebrocks could not prove th eir claims against either the attorneys or the accountants . T he court entered summary judgment for the defendants. On appeal t he Has sebrocks insist tha t the judge should have applied the disc losure deadline specified in Rule 26(a)(2)( D ) of the Federal Rule s of Civil Proce dure r ather than the discovery deadline set by court order. They a lso chal lenge the judge’s sum mary

- judgment rul ing.

W e affirm. The disclosure deadline specified in Rule 26(a)(2)(D) is just a default deadline; the court’s sche duling order co nt rols

. And i t was well within the judge ’s di scretion to reject the excuses offered by the Hassebrocks to explain the ir tardy disclosure. Finally, b ecause expert test imony is necessary to prove professional malpractice, su mmary judgment was proper as to all defendants. I. Background A. Factual Background

Orvil Hassebrock and his wife, Evelyn, hired the Ber nhoft Law Firm in 2005 to help with a host of legal problems. Most seriously, Orvil was then the subject of a federal crim in al tax investigation

. 1 The Hassebrocks also believed they had a potential civil claim for investment losses in a comp a-

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 se ntence 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 Semp er Libera and a claim against a previous set of lawyers over fees withheld f rom a settlement recov ery

. In 2008 t he Hassebrocks became dis satisfied with the firm’s attorneys and f ired them. In 2010 Orvil filed this suit against the firm in federal court , invoking the court’s divers ity jurisdiction. He initially proceeded pro se . Se veral years later he retained counsel
, and in 2013 counsel filed an

am ended complaint add ing Evelyn as a plaintiff and mult ipl ying the number of defend ants. We take the following factual narrative from t he amen ded complaint , remembering o f course that these are only a llegations

. 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 B ernhoft Firm hired Noggle to assist in preparing the Hassebrocks’ delinquent tax re turns. T he Hassebrocks later complained about the quali t y of Noggle’s work, so Bernhoft asked Brewer to help instead . The Hassebrocks

were dissatisfied with his work too

. Th e Hassebrocks allege that the defendants failed to file
accurate tax re turns on their behalf
, result ing in hundreds of thousands of dollars in penalties, interest, and legal and a ccounting fee s. The y also allege that the attorney defendants dropped the bal l 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

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The amended complaint states six c laims for relief : (1) a negligence claim against all defendants; (2) a breach

- of

contract claim against all defendants; (3) a legal malpractice claim against the law firm and the attorney s; (4) a claim for breach of fiduciary duty against the accounting firm and the
accountant s ; (5) a claim for negligent misrepresentation against the accountants; and (6) a claim a gainst the accoun tants for aiding and abetting the torts of the attorneys

. B . Procedural History The substance of this appeal focuses largel y on discovery deadlines, so we’ll sketch the relevant procedural histor y in some detail . The case was litigated in fits and starts because Orv il was initially pro se and the case was twice judicially reassigned.

When Orvil filed his pro se complaint

— o n 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

. N ewly retained counsel did not amend the complaint until March 2013. T he defendants then moved to dismiss , and o n February 2, 2014
, the case was reassigned to Judge Phil Gilbert

. By order dated May 2, 2014, Judge Gilbert gra nted the motion in part and denied it in part . T wo weeks later (on May 19) the case was reassigned to Judge Nancy Rosenstengel

. As relevant here, t he district court’s local rules provide that “ [t] he cut

- off date for all discovery, including experts and thi rd 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 AppendixNo. 14

- 2943 5

at ii

- iii (Dec. 2009); Timetable and Deadlines Under Federal Rules and Civil Just ice Reform Act, SDIL

- LR at v (Dec. 2009) (emphasis added)

. O n March 16, 2012
, while Orvil was still
pro se, the court clerk issued a scheduling order set ting September 2013 as the presumptive trial month

. Consistent with the local rule s , th is 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. D isclosure of e xperts 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.

O n Augu st 20, 2013 , the clerk rescheduled the presum ptive 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

or der.

A motion to resche dule the presumptive trial date fo llowed, and t he parties thereafter produced a joint report proposing th is schedule for discovery and motions dea dlines : 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 Nove mber 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 mon th).

On Sep tember 18 the district court re set the presumptive trial month to September 2014 . Th at timeframe obvio usly didn’t mesh with the schedule proposed by the parties in their joint report

. It’s not entirely clear why the parties’ pr oposed 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 sh all be completed by 5/10/2014. Dispositive motions due by 5/25/2014. The pa rties are reminded that they may, pursuant to Federal Rule of Civil Procedure 29, modify di scovery dates occurring prior to the close of di s-No. 14

- 2943 7

covery, by agreement, without the Court’s i nvolvement, provided that neither the discovery cutoff and dispositive motion deadlines nor the settlement confere nce date are affected.

In March 2014 the defendants moved to stay discovery until the motions to dismiss were resolved. The Hassebrocks file d an oppos ition 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, Or der setting deadlines ... , Plaintiffs have calendared events and expen ded 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 dep ositions in Chicago next week. The magistrate judge de clined to stay discovery. Discovery then proceeded, with some hiccups. The d efendant 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 ju dge ordered him to appear. In a ddition , on April 9 the Hassebrocks ask ed the court to allow them to dis close the name of their expert witness without the e xpert ’s report as required by Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure . They explain ed : 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 e x-8 No. 14

- 2943

pected damages, among other disclosures which his written report must provide. B ecause 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 n o t rule on this motion , and the May 10 discovery deadline came and went. T he Hassebrocks did not disclose either their expert ’s name or his report before the cutoff , as they said they would

. Instead, o n May 13

— after discovery closed

— the y filed a new motion identi fying their expert but asking the court to allow additional time to di sclos e 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 gene rally due no later than 115 days before the first day of the month of the presumptive trial date. Yet, the Hassebrocks seek an additional e nlargement 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 r elying 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] di sclo sures 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’ arg ument : [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 disco very 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 di spositive 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 cut off without leave of court just doesn’t make co mmon se nse 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 the m for not raisi ng th is concern earlier and denied their b elated request to extend the discovery deadline based on e xcusable neglect

. The Hassebrocks appealed these rulings to the district judge

. While the appeal was pending, they filed their expert

re port on May 28 and a mended it on May 30.
In the meantime, t he defendants moved for summary judgment . As we’ve noted, on May 19 t he case was rea ssigned to Judge Rosenstengel

. O n August 18, 2014
, she held10 No. 14

- 2943

a hearing to address the appeal of the magistrate judge’s ru lings and the motions for summary judgment. After clarif ying t he facts surrounding the expert

- witness disclosure, Judge Rosenstengel upheld the magistrate judge ’s May 15 order, excluded the Hassebrock s’ expert witness, and gran ted 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 attorney s or the accoun ta nts. Without an e xp ert the Hassebrocks had no case , so the judge entered summary judgment for the defendants

. II. Discussion

T he Hassebrocks primarily challenge the ex clusion of their expert witness

. In the alternative, t hey argue t hat even without an expe rt witness
, at le ast some of their claims r emain viable and should not have been re solved against them on summary judgment

. We review discovery

- related orders for abuse of discr etion

. Jones v. City of Elkhart , 737 F.3d 1107, 1115

– 16 (7th Cir. 2013). When, as in this case, the district judge rule s on a di scovery matter based on a n appeal from a magistrate judge’s decision , the judge ’s discretion is constr ained : A d istrict judge may reverse a magistrate judge’s d iscovery ruling only when it is “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A) ; s ee also Jones , 737 F.3d at 1115

– 16 ( reviewing for abuse of discretion the distr ict court’s affirmance on clear

- error review of a magistrate judge’s quashing of a su bpoena).No. 14

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The Hassebrocks’ primary contention is that the expert

witness disclosure deadline was actually June 3, 2014
, not May 10, 2014. They insist that the district court should have applied the exp ert

- witness disclosure deadline specified in Rule 26 (a)(2)(D) rather than the discovery deadline set by court order

. Thi s argument is easily dismissed. Among other disco very requirements
, Rule 26 requires parties to disclose the identity of any expert witness they intend to present at trial
, together with “a writte n report

— prepared and signed by the witness

— if the witness is on e retained or specially employed to provide expert testimony in the case.” F ED

. R. C IV

. P. 26(a)(2)(A), (B). The rule also sets a default deadline for the required disclosure s :
Time to Disclos e 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 re ady for trial

... . F ED

. R. C IV

. 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 set ting a discovery deadline

. As we’ve explained, on January 17 , 2014, the ma gistrate judge ordered that “[d]iscovery shall be completed by 5/10/2014” and referred to that date as the “close of disco very .” The Hassebrocks make much of the fact that th e order didn’t s ay that “ all discovery shall be completed” by that date
, but that h ardly matters

. T he addition of the word “all”12 No. 14

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would have been superfluous

. Indeed, in their April 9 m otion asking for leave to disclose their expert without an a ccompanying report
, t he Has sebrocks made it clear that they understood the May 10 dead line as the final date to conclude all discovery : T hey promised to disclose their expert ’s report

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

T he Hassebrocks’ May 13 motion requesting an after

- the

fact extension of time reinforces the point. Rule 6 provides that when a request for extension of time i s made after an expired deadline , “the court may, for good cause, extend the time ... if the party failed to act because of excusable n eglect.” F ED

. R. C IV

. P. 6(b)(1) (B) ; s ee, 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 n eglect ; they explained that they had difficult y raising the funds needed to pay an expe rt witness. So there was n o mi sunderstanding here . T h e Hassebrocks clearly grasped that the May 10 dead line applied to all discovery

. If a party doesn’t make a timely and complete expert

witness disclosure, the expert’s testimony ordinarily can’t be presented at trial:

I f a party fails to provide information or ident ify 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 substant ially justified or is harmless.

F ED

. R. C IV

. P. 37(c)(1).No. 14

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As the district judge saw it , the Hassebrocks’ delay was neither substantially justified nor harmless. T he judge not ed that the Hassebrocks could h ave raised the issue of their f inancia l constraints much earlier, before the discovery dea dline lapsed, but instead their April 9 motion assured the court that they would provide the necessary expert discl osures “well before” the May 10 deadline. The judge also no ted that r eopening discovery w ould prejudice the defendants because the case was old and had already moved to the
summary

- judgment stage . R eopening discovery would

cause further delay and require the defendants to prepare

new mo tions on potentially different grounds

. Th is reaso ning i s sound in all respects. We find no abuse of discretion.

On the merits our review is de novo

. Zuppardi v. Wal

Mart Stores, Inc. , 770 F.3d 644, 649 (7th Cir. 2014)

. All claims in this case sound in professional negli gence (i.e., neg ligence and malpractice) or are duplicative or derivative of the claims for professional negligence. To prove a professional negligence case under Illinois law,

t he established standard of care ... is stated as the use of the same degree of knowledge, skill and ability as an ordin arily careful professional would exercise under similar circumstances.

... The standard recognizes that lay jurors are not equipped to determine what constitutes re asonable care in professional conduct without measuring the actor’s conduct against that of
ot her 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 te stimony to establish the attorney’s professional standard of

care , with a narrow exception for “common knowledge” si tuations . 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 apprai sing it, ” a plaintiff can proceed to trial without expert test imony. Hatchett v. W2X, Inc. , 993 N.E.2d 944, 963 (Ill. App. Ct. 2013) (internal quotation marks omitted) ; a ccord 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 T r s

. of Cmty. Coll. Dist. No. 508 v. Coopers & Lybrand , 803 N.E.2d 460, 468 (Ill. 2003) (Illinois law holds a ccountants “to the same standard as surgeons or any other professional service providers

. ”) . S o the defendants are ent itled to s ummary judgment un less the common

- knowledge exception applies.

The Hassebrocks say that they should at least have the opportunity to prove that the attorneys wholly failed to pu rsue a claim related to their investment losses in Semper Libera, which they c ontend is a breach of duty sufficiently obvious as to fit within the common

- knowledge exception. T here are two problems with this argument

. First, the Hassebrocks failed to raise it in their cursory three

- page r esponse to the summary

- judgment motion in the distr ictNo. 14

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court

— or at the motion hearing , for that matter

. That const itutes 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 r esponse 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 F ED

. R. C IV

. 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 H assebrocks point to no evidence to support their alleg ations o f negligence on the Semper Libera claim. To the co ntrary, the only facts of record on this point come from t he attorney defendants , who direct us to evidence showing th e Hassebrocks’ allegations to be false. According to Bernhoft ’s affidavit , he told the H assebrocks that the Semper Libera claim

— valued at a little over $50,000 (at best)

— was not worth pursuing in light of the likely ex pense of litigation
, so he recommended instead that the y deduct the loss on their
tax return (which, incidentally, they did)

. This evidence is uncontradicted. The common

- knowledge exception does not apply

. T he absence of an expert witness is fatal to the negl igence and malpractice claims.

T he 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 created16 No. 14

- 2943

an express [] or implied contractual or mutual relationship with accounting Defendants, whereby all Defendants ag reed 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 d uty 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 l egal and accounting community

. (Emphasis added.)

E ven if the contract c laim had been stated in a way that was less obviously duplicative of the negligence c laims
, 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 th e question of breach doesn’t turn on whether the defen dants 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 recharacterizin g the claim

— whether by calling the [la wyer’s action] a breach of fiduciary obligation or by conten ding that his contract with the law firm contained an implied promise not to commit such [acts]

— to get around the r equirement 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

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Similarly, t he claim for breach of fiduciary duty against the accountant s also depends on expert testimony to esta blish 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 ma lpractice claim because the alle ged breach is based on the quality o f the work p e r formed

. See Nettleton v. Stogsdill
, 899 N.E.2d 1252, 1270 (Ill. App. Ct. 2008) (affirm ing dismi ssal of breach

- of

- fiduciary

- duty claim as dup licative with malpractice claim). A nd a s we’ve seen, e stablishing the duty of care for accountants requires expert testimony.

The claim for negligent misrepresentation alleges that mistakes in the Hassebrocks’ income

- tax filings are attribu table to the negligen ce of the accountants. The Hassebrocks concede that summary j udg ment on this claim is appropriate if they can’t use their expert

. The final claim is a derivative one for aid ing and abet ting the various breaches of duty by the others. T he Hassebrocks are unable to establish any breach of duty for the reasons we’ve al ready explained

. T he claim for aiding and abetting necessarily fails. 3

3 The Hassebrocks advance two additional argument s 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 grant ed an extension of time . This argument asks us to remand a case for trial when we know the plaintiffs cannot wi n b ecause the y have no e xpert witness. That would be a waste of time, money, and judicial r esources. The Hassebrocks also argue that Barnes was not entitled to summary judgment because he did not forma lly raise the expert

- witness18 No. 14

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A FFIRMED

.

issue in the district court . It’s true that Barnes did n o t include this arg ument in his summary

- judgment brief; he argued instead that the Hassebrocks have no evidence of his personal liability for any profe ssional negligence. A t 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 a rgument.