In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3859
D AVID B OURKE,
Plaintiff-Appellant,
v.
S COTT C ONGER AND W AYNE E. B RUCAR,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 cv 7749—James B. Zagel, Judge.
A RGUED N OVEMBER 2, 2010—D ECIDED A PRIL 19, 2011
Before C UDAHY, F LAUM, and K ANNE, Circuit Judges.
C UDAHY, Circuit Judge. David Bourke was convicted of
murder in Illinois state court but his conviction was
overturned on appeal. After his release, he filed suit
against various state officials and the attorneys who
represented him at the criminal trial. Bourke’s suit con-
tained two sets of claims: (1) federal claims alleging that
the state officials involved in his arrest and prosecu-
tion had deprived him of his constitutional rights and
2 No. 09-3859
(2) state professional malpractice claims alleging that his
trial attorneys failed to exercise due care in handling his
case. After extensive pretrial motion practice, Bourke
stipulated to a dismissal of his federal claims against
the state officials. Shortly thereafter, the district court
granted summary judgment against Bourke’s remaining
malpractice claims. Bourke appeals from this decision,
asking us to reverse the district court’s grant of sum-
mary judgment. We affirm.
I. Background
On April 16, 1998, state police arrested David Bourke
in connection with the death of Roger Johnson in the
village of Downers Grove. Bourke was charged with
murdering Johnson and stood trial in Illinois state court.
Scott Conger and Wayne Brucar (“Appellees”) represented
Bourke at his trial, primarily arguing that Bourke’s
killing of Johnson was excusable as an act of self-defense.
After a week-long trial, the jury found Bourke guilty. The
trial court judge sentenced Bourke to twenty-five years
of imprisonment.
Bourke, represented by new counsel, appealed his
conviction. His primary arguments on appeal were that
the State failed to establish all of the elements of first-
degree murder, that the state did not present evidence
sufficient to defeat his affirmative defense and that he
received ineffective assistance of counsel. On August 21,
2001, the Illinois appellate court reversed Bourke’s con-
viction, finding that the State did not disprove Bourke’s
claim that he killed Johnson in self-defense beyond a
No. 09-3859 3
reasonable doubt. In its opinion, the court declined to
discuss Bourke’s ineffective assistance of counsel claim.
On October 31, 2003, Bourke filed suit in the United
States District Court for the Northern District of Illinois
against Appellees and various state officials. Bourke’s
suit contained two distinct sets of claims: (1) claims that
the state officials involved in his arrest and prosecu-
tion violated his constitutional rights by suppressing ex-
culpatory evidence and (2) claims that the Appellees
committed legal malpractice when representing him at
trial. On October 21, 2009, Bourke stipulated to the dis-
missal of his claims against the state officials. From this
point onward, Bourke’s suit only contained Illinois
state law malpractice claims against the Appellees. While
district courts should generally dismiss such state claims
without prejudice once they have resolved all federal
claims, they have discretionary authority to retain sup-
plemental jurisdiction over these claims. See 28 U.S.C.
§ 1367(a); Ridings v. Riverside Med. Ctr., 537 F.3d 755,
772 (7th Cir. 2008) (citing Redwood v. Dobson, 476 F.3d
462, 476 (7th Cir. 2007)). As neither party has objected to
the district court’s exercise of supplemental jurisdiction,
we will not review the district court’s decision in that
regard.
Bourke alleged that the Appellees committed legal
malpractice by failing to exercise reasonable care when
representing him and that their neglect caused the jury to
4 No. 09-3859
find Bourke guilty.1 Over the course of the litigation,
Bourke abandoned all of his malpractice allegations,
except for his claim that the Appellees committed legal
malpractice when they failed to exercise reasonable
professional judgment during the voir dire. In order to
support his claim, Bourke submitted the expert report
of David Thomas, a clinical professor at IIT-Chicago
Kent College of Law and a trial attorney with thirty-five
years of experience. Thomas’s report stated that the
Appellees should have asked further questions from or
struck a juror who stated that he disliked firearms and
that he disliked individuals keeping firearms in their
homes. The Thomas report also stated that the Appellees
should have questioned the jurors about their views on
alcohol consumption because it was an issue that was
likely to assume importance during the trial. It con-
cluded that, because of these errors, “the selection of the
jury . . . did not meet the standard of care reasonably to
be expected from criminal defense counsel in 1999.”
1
In particular, Bourke alleged that the Appellees dem-
onstrated a lack of reasonable care when they: “1) fail[ed] to
present testimony from a crime scene expert who would
have rebutted the State’s reading of the evidence, 2) stipulat[ed]
to the admission of a tape recording that contained ‘gaps of ap-
parent erasure,’ and excluded evidence that would have
helped the Plaintiff’s case, 3) fail[ed] to exercise professional
judgment in selecting the jury, to object to the admission of
prejudicial photographs, and to object to the use of the
aforementioned tape recording.” Bourke v. Vill. of Downers
Grove, 2009 WL 1531809, at *1 (N.D. Ill. May 29, 2009).
No. 09-3859 5
On February 10, 2009, the Appellees filed a motion
requesting that the court grant summary judgment
against Bourke’s sole remaining malpractice claim. On
May 29, 2009, the district court granted the Appellees’
motion, finding that Bourke failed to present the court
with evidence establishing that the Appellees’ actions
were the proximate cause of the jury’s guilty verdict. The
court noted that Illinois law requires a plaintiff in a
legal malpractice case to prove that but-for the attorney’s
action, the plaintiff would have prevailed in the under-
lying action. It went on to hold that Bourke had failed
to submit evidence sufficient to establish that the Appel-
lees’ actions during voir dire were a but-for cause of the
murder trial’s outcome. Bourke timely appealed from
the district court’s decision.
II. Discussion
We review a district court’s grant of summary judg-
ment de novo, Narducci v. Moore, 572 F.3d 313, 318
(7th Cir. 2009), examining the record in the light most
favorable to the non-moving party, Trade Financial
Partners, LLC v. AAR Corp., 573 F.3d 401, 406 (7th Cir.
2009). “If, after reviewing the record as a whole and
drawing all reasonable inferences in favor of the non-
moving party, a court determines that there remains no
genuine issue as to any material fact,” then the moving
party is entitled to summary judgment as a matter of
law. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 702
(7th Cir. 2009).
6 No. 09-3859
A plaintiff asserting a legal malpractice claim based
on Illinois law must prove: “(1) the defendant attorney
owed the plaintiff client a duty of due care arising from
an attorney-client relationship, (2) the attorney breached
that duty, (3) the client suffered an injury in the form
of actual damages, and (4) the actual damages resulted
as a proximate cause of the breach.” Fox v. Seiden, 887
N.E.2d 736, 742 (Ill. App. Ct. 2008). The Appellees have
conceded that they owed Bourke a duty of care, leaving
us to review the district court’s holding regarding the
remaining elements. Because we find that Bourke
failed to establish that the Appellees’ actions were the
proximate cause of his injury, our discussion is limited
to this issue. In order to establish proximate cause in a
legal malpractice case, a plaintiff must show that “but
for the attorney’s malpractice, [he] would have prevailed
in the underlying action.” Preferred Personnel Servs., Inc. v.
Meltzer, Purtill, & Stelle, LLC, 902 N.E.2d 146, 151 (Ill. App.
Ct. 2009). Illinois courts have stated that it is generally
preferable to “leave proximate cause to juries because
it is often debatable, and fair minded persons might
reach different outcomes[.]” First Nat’l Bank of LaGrange
v. Lowery, 872 N.E.2d 447, 469 (Ill. App. Ct. 2007). It is clear,
however, that Illinois courts do not hesitate to
grant summary judgment when the resolution of a
dispute about causation turns entirely on legal, rather
than factual, issues. See, e.g., Governmental Interinsurance
Exch. v. Judge, 825 N.E.2d 729, 735 (Ill. App. Ct. 2005);
Envtl. Control Sys., Inc. v. Long, 703 N.E.2d 1001, 1008 (Ill.
App. Ct. 1998).
No. 09-3859 7
The district court’s decision to grant summary judg-
ment was based on the court’s determination that Bourke
had not presented evidence sufficient to create a
genuine dispute concerning proximate causation. Bourke
argues that this decision was erroneous and that he
provided the court with evidence sufficient to defeat the
Appellees’ motion for summary judgment. More specifi-
cally, he contends that the Thomas expert report,
which stated that “there is a reasonable likelihood the
deficient performance of counsel resulted in the guilty
verdict,” made causation a disputed issue that required
a determination from a fact-finder to resolve.
After conducting a thorough review of the record, we
find that the district court did not err in holding that
Bourke’s evidence was insufficient. A plaintiff in a legal
malpractice case “must plead and prove that [he] has
suffered injuries resulting from the defendant attorney’s
alleged malpractice.” Nettleton v. Stogsdill, 899 N.E.2d
1252, 1247 (Ill. App. Ct. 2008) (emphasis added). Bourke
depended exclusively on Thomas’s expert report to
establish the causation element of his claim. While
expert testimony is one of the types of evidence that a
plaintiff like Bourke could normally rely on to ward off
summary judgment, it is well established that an expert
report that lacks foundation and depth will be given
little consideration by courts. In order for “an expert
report to create a genuine issue of fact, it must provide
not merely . . . conclusions, but the basis for the conclu-
sions.” Vollmert v. Wis. Dep’t of Transp., 197 F.3d 293, 298
(7th Cir. 1999). See also McMahon v. Bann-o-matic Corp.,
150 F.3d 651, 658 (7th Cir. 1998) (“[A]n expert who
8 No. 09-3859
supplies nothing but a bottom line supplies nothing of
value to the judicial process.”) (citing Mid-State Fertilizer
Co. v. Exchange Nat’l Bank, 877 F.2d 1333, 1339 (7th Cir.
1989)). As the district court noted, the Thomas report
does not support its conclusion that the Appellees’ perfor-
mance during voir dire caused the jury to find Bourke
guilty with analysis, facts or reasoning. While the report
discusses various ways in which the Appellees could
have better represented Bourke’s interests (e.g., by using
their peremptory challenges, by questioning jurors for
their opinions regarding the use of alcohol), this discus-
sion only goes towards establishing that the Appellees
breached their duty to Bourke, not causation. The
Thomas report fails to identify facts that support its
conclusion that the Appellees’ alleged errors had any role
in causing the jury to find Bourke guilty. This short-
coming prevents the Thomas report from creating a
genuine, disputed issue of fact concerning causation.
Because of this flaw and the fact that Bourke did not
present the court with any other evidence relevant to
this element of his prima facie case, it was appropriate
for the district court to grant summary judgment
against Bourke’s claim.
III. Conclusion
For the reasons stated above, the ruling of the district
court is
A FFIRMED.
4-19-11