In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐2731
WEST BEND MUTUAL INSURANCE COMPANY,
Plaintiff‐Appellant,
v.
PAUL W. SCHUMACHER, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:13‐cv‐04986 — Ronald A. Guzmán, Judge.
____________________
ARGUED OCTOBER 30, 2015 — DECIDED DECEMBER 21, 2016
____________________
Before POSNER, RIPPLE, and HAMILTON, Circuit Judges.
RIPPLE, Circuit Judge. In 2013, West Bend Mutual Insurance
Co. (“West Bend”) brought this legal malpractice action
against its former counsel, Paul Schumacher, and his law
firm, Roddy, Leahy, Guill & Ziema, Ltd. (“RLGZ”). The gra‐
vamen of the complaint is Mr. Schumacher’s alleged perfor‐
mance in defending a workers’ compensation claim in 2005
and 2006. The district court dismissed the second amended
complaint on the defendant’s 12(b)(6) motion and terminated
2 No. 14‐2731
the case. In the district court’s view, the complaint failed to
set forth with sufficient specificity a cause of action for legal
malpractice. We agree; the complaint fails to state plausibly
the causation and harm elements required under Illinois legal
malpractice law. Accordingly, we affirm the judgment of the
district court.
I
BACKGROUND
West Bend first filed a legal malpractice action based on
the performance of Mr. Schumacher and RLGZ in the under‐
lying workers’ compensation matter in 2008. The parties later
agreed to a dismissal of that claim and entered into a tolling
agreement pending the resolution of several other tangen‐
tially related actions, including one for medical malpractice.
Following the resolution of those claims, West Bend
brought the present action in the United States District Court
for the Northern District of Illinois in July 2013, and filed an
amended complaint in December 2013. After each of these fil‐
ings, the defendants moved to dismiss. The district court
granted each of the motions, concluding that the allegations
were too speculative or vague. In each case, however, the
court also granted leave to amend.
A.
The allegations of the Second Amended Complaint are
central to our task. We therefore begin with a rendition of its
contents.
No. 14‐2731 3
In December 2005, West Bend retained RLGZ to provide
legal representation with respect to a workers’ compensation
claim filed by John Marzano against West Bend’s insured,
Nelson Insulation. The substance of Marzano’s claim is not
described. Mr. Schumacher was the attorney with principal
responsibility for defending against the Marzano claim. After
several continuances, including one requested by Mr. Schu‐
macher, the Illinois Workers’ Compensation Commission
(“IWCC”) scheduled a hearing on the matter for August 23,
2006.
According to the complaint, Marzano supported his claim
with the deposition of his treating physician, Dr. Sheinkop.
He also had undergone an independent medical examination
by Dr. Nelson, who provided a written report. This report in‐
dicated that Dr. Nelson’s testimony would be favorable to
West Bend and would counter Dr. Sheinkop’s opinion. In his
preparation for the scheduled August hearing, Mr. Schu‐
macher did not speak to or depose Dr. Nelson. Instead, with‐
out seeking the approval of West Bend, he agreed with Mar‐
zano’s counsel to put a redacted version of Dr. Nelson’s report
in evidence. Mr. Schumacher also did not speak to any other
witnesses or potential witnesses until the day before the
scheduled hearing; he then learned that a witness with rele‐
vant testimony was out of town and would not be available
to testify the following day.
Prior to the hearing, Mr. Schumacher possessed other in‐
formation that was beneficial to West Bend’s defense, includ‐
ing that Marzano worked a full day on the day of the alleged
incident, that he continued to work for two additional weeks
until he was laid off, and that his own treating physician
4 No. 14‐2731
could not find any change in the condition of his knee follow‐
ing the incident. Mr. Schumacher disclosed all of this infor‐
mation, favorable to his client, to Marzano’s counsel prior to
the hearing.
Documents also indicated that Marzano had not reported
the incident until after he was laid off and had retained an
attorney. But Mr. Schumacher did not investigate Marzano’s
contrary statements and did not verify them with Marzano’s
former supervisor, to whom the incident report allegedly had
been made.
On the day of the IWCC hearing, Mr. Schumacher did not
request a continuance or a bifurcated proceeding to allow for
the presentation of additional evidence. Instead, “without
[West Bend]’s knowledge or agreement,” Mr. “Schumacher
made the representation to counsel for [Marzano] that [West
Bend] would accept liability of the workers’ compensation
claim”1 and the arbitrator was “advised of that position.”2
West Bend claims that it “was forced to accept that agreement
pending further investigation of other litigation options.”3
The complaint further alleges that, as a result of
Mr. “Schumacher’s unauthorized actions and representations
to [West Bend], [West Bend] was forced to make significant
payments, including temporary total disability [(“TTD”)]
benefits and medical expenses, with little or no likelihood of
1 R.71 at 4.
2 Id. at 5.
3 Id.
No. 14‐2731 5
recovery.”4 To “justify his concession of compensability, de‐
fendant Schumacher overemphasized” to his client “the po‐
tential for penalties to [West Bend] if the hearing had gone
forward.”5 Mr. Schumacher “continued to counsel [West
Bend] against getting the case reopened to present its de‐
fenses as he believed the case was indefensible.”6
According to the complaint, West Bend alleged that
Mr. Schumacher breached duties to West Bend by virtue of
“(a) his unauthorized stipulation concerning compensability;
(b) his failure to adequately investigate the claim or claimant’s
preexi[s]ting medical condition; (c) his subsequent represen‐
tations to [West Bend] regarding their litigation options[;] and
(d) his failure to adequately advise [West Bend] of material
facts and legal options prior to hearing.”7 The specific allega‐
tions also concerned Mr. Schumacher’s failure to depose
Dr. Nelson, his disclosure to Marzano’s counsel of infor‐
mation beneficial to West Bend, and his failure to discover
and remedy the unavailability of a relevant witness for the
hearing.
All of these, West Bend alleged, resulted in its being
“forced to accept a disadvantageous position which greatly
compromised its ability to defend the claim.”8 It also was
“forced to pay additional sums and eventually chose to reach
a disputed settlement in order to mitigate its exposure”:
4 Id.
5 Id.
6 Id.
7 Id.
8 Id.
6 No. 14‐2731
[a]lthough [West Bend] technically had the op‐
tion of contesting the compensability of the
claim or filing a motion to terminate benefits af‐
ter retaining new counsel, those options were
not practical as plaintiff had been paying bene‐
fits for some time and the Commission was un‐
likely to und[o] or reverse such payments. In
other words, [West Bend]’s payment of benefits
up to that point severely prejudiced its capabil‐
ity to reverse the concession by defendant Schu‐
macher.[9]
The complaint further alleged that even if the Commission
had determined that West Bend was not liable, it was “ex‐
tremely unlikely” that it would require repayment of prior
benefits, and, if it did, “collection of those funds would have
been difficult if not impossible.”10
B.
In its July 18, 2014 order granting the motion to dismiss
the Second Amended Complaint, the district court deter‐
mined that, with respect to the bulk of West Bend’s allega‐
tions about Mr. Schumacher’s performance—including the
failure to depose Dr. Nelson, the failure to contact witnesses
prior to the hearing, and the disclosure of certain facts to Mar‐
zano’s counsel—West Bend’s complaint “does not … explain
9 Id. at 5–6.
10 Id. at 6.
No. 14‐2731 7
how any of these alleged acts and omissions harmed its de‐
fense.”11 With respect to the allegation that Mr. Schumacher
had represented that West Bend would accept liability, the
district court stated:
Though Plaintiff alleges that the representation
“forced [it] to … pay[] … temporary total disa‐
bility benefits and medical expenses, with little
or no likelihood of recovery” and “to reach a
disputed settlement in order to mitigate its ex‐
posure”, these assertions are legally and factu‐
ally unsupported. As a matter of law, paying
benefits pending resolution of a claim does not
preclude an employer from contesting liability.
Moreover, plaintiff admits that it could have
contested the claim, despite the representation.
In short, because plaintiff does not and cannot
allege that defendants’ representation was the
cause of any damages it may have suffered, the
representation cannot support a malpractice
claim.[12]
The court therefore granted the motion, and, because it had
concluded that West Bend had failed to state a claim in three
successive complaints, it terminated the case.
West Bend now appeals.
11 R.80 at 3.
12 Id. at 3–4 (alterations in original) (citations omitted).
8 No. 14‐2731
II
DISCUSSION
A.
We begin by setting out the principles that must govern
our assessment of the Second Amended Complaint.
1.
We review a district court’s dismissal under Rule 12(b)(6)
de novo. Bible v. United Student Aid Funds, Inc., 799 F.3d 633,
639 (7th Cir. 2015). We, like the district court, must “accept as
true all factual allegations in the amended complaint and
draw all permissible inferences in [the plaintiff]’s favor.” Id.
A complaint will survive a 12(b)(6) motion if, after the court
disregards any portions that are “no more than conclusions,”
it “contain[s] sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678–79 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausi‐
bility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. at 678. “‘Plausibility’
is not a synonym for ‘probability’ in this context, but it asks
for ‘more than a sheer possibility that a defendant has acted
unlawfully.’” Bible, 799 F.3d at 639 (quoting Olson v. Cham‐
paign Cty., 784 F.3d 1093, 1099 (7th Cir. 2015)). After Twombly
and Iqbal, a plaintiff seeking to survive a motion to dismiss
must “plead some facts that suggest a right to relief that is
beyond the speculative level.” In re marchFIRST Inc., 589 F.3d
901, 905 (7th Cir. 2009) (internal quotation marks omitted).
No. 14‐2731 9
That is, “[w]hile a plaintiff need not plead detailed factual al‐
legations to survive a motion to dismiss, she still must pro‐
vide more than mere labels and conclusions or a formulaic
recitation of the elements of a cause of action for her com‐
plaint to be considered adequate.” Bell v. City of Chicago, 835
F.3d 736, 738 (7th Cir. 2016) (internal quotation marks omit‐
ted).
We have interpreted the standard announced by the Su‐
preme Court as requiring that “the plaintiff … give enough
details about the subject‐matter of the case to present a story
that holds together. In other words, the court will ask itself
could these things have happened, not did they happen.”
Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010) (em‐
phasis in original). In the end, “the plausibility determination
is ‘a context‐specific task that requires the reviewing court to
draw on its judicial experience and common sense.’”
McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011)
(quoting Iqbal, 556 U.S. at 679).
2.
Because federal jurisdiction over this action is premised on
diversity of citizenship, see 28 U.S.C. § 1332, we must look to
the law of the state in which the district court sits to determine
the applicable governing law. Erie R.R. Co. v. Tompkins, 304
U.S. 64, 79–80 (1938). The parties agree that Illinois law gov‐
erns the elements of this legal malpractice action. The Su‐
preme Court of Illinois has stated succinctly that a cause of
action for legal malpractice includes the following elements:
(1) the existence of an attorney‐client relationship that estab‐
lishes a duty on the part of the attorney, (2) a negligent act or
10 No. 14‐2731
omission constituting a breach of that duty, (3) proximate
cause of injury, and (4) actual damages. See Sexton v. Smith,
492 N.E.2d 1284, 1286–87 (Ill. 1986).
Illinois courts have described the State’s legal malpractice
cause of action as following a case‐within‐a‐case model:
A legal malpractice suit is by its nature depend‐
ent upon a predicate lawsuit. Thus, a legal mal‐
practice claim presents a case within a case.
[N]o malpractice exists unless counsel’s negli‐
gence has resulted in the loss of an underlying
cause of action, or the loss of a meritorious de‐
fense if the attorney was defending in the un‐
derlying suit.
Nelson v. Quarles & Brady, LLP, 997 N.E.2d 872, 880 (Ill. App.
Ct. 2013) (alteration in original) (emphasis in original) (cita‐
tions omitted) (internal quotation marks omitted).13 There‐
fore, in assessing the sufficiency of a complaint of legal mal‐
practice we must focus on the underlying claim. See Claire
Assocs. by Livaditis v. Pontikes, 502 N.E.2d 1186, 1190 (Ill. App.
Ct. 1986). The plaintiff must set forth a plausible statement not
only that a breach of duty occurred but that the breach caused
the plaintiff to lose a valid claim or defense in the underlying
action and that, absent that loss, the underlying claim “would
13 Most cases identify the loss of a meritorious claim or defense as a part
of the element of proximate causation. However, some frame it as part of
the element of damages. See, e.g., Bartholomew v. Crockett, 475 N.E.2d 1035,
1041 (Ill. App. Ct. 1985) (“[D]amage is an element of a professional mal‐
practice claim that is not presumed, [and plaintiff] bears the burden of
pleading and proving that damages resulted. This burden entails estab‐
lishing that ‘but for’ the attorneys’ negligence, the client would have suc‐
cessfully defended or prosecuted the underlying suit.”).
No. 14‐2731 11
have been successful.” Fabricare Equip. Credit Corp. v. Bell, Boyd
& Lloyd, 767 N.E.2d 470, 474 (Ill. App. Ct. 2002).14 “These ele‐
ments effectively demand that the malpractice plaintiff pre‐
sent two cases, one showing that her attorney performed neg‐
ligently, and a second or predicate ‘case within a case’ show‐
ing that she had a meritorious claim [or defense] that she lost
due to her attorney’s negligence.” Mihailovich v. Laatsch, 359
F.3d 892, 904–05 (7th Cir. 2004).
B.
Having stated the principles that govern our inquiry, we
now apply these principles to the particular circumstances of
this case.
There is no dispute that West Bend has described ade‐
quately the duty element in its malpractice claim. Nor is there
any disagreement about the adequacy of West Bend’s narra‐
tive with respect to the alleged attorney conduct constituting
a breach of that duty. In that respect, West Bend alleges that
Mr. Schumacher, having assumed responsibility for the de‐
fense of the claim, failed to prepare adequately for the hear‐
ing, revealed inappropriately the defense theory of the case to
14 Cf. Fox v. Seiden, 887 N.E.2d 736, 746 (Ill. App. Ct. 2008) (noting that, to
satisfy the element of proximate causation in a legal malpractice action,
“the plaintiff must plead sufficient facts to establish that ‘but for’ the neg‐
ligence of the attorney, the client would have successfully defended the un‐
derlying suit” (emphasis added)); Ignarski v. Norbut, 648 N.E.2d 285, 289
(Ill. App. Ct. 1995) (holding that the plaintiff’s burden to plead a case
within a case was not satisfied where the pleadings did not “plead ulti‐
mate facts establishing” its entitlement to relief on its predicate claim).
12 No. 14‐2731
Marzano’s counsel, and then, without authorization, con‐
ceded liability for Marzano’s workers’ compensation claim.15
The allegations with respect to causation and damages
present, however, significant concerns. At the outset, we note
that the treatment by the Second Amended Complaint of the
underlying workers’ compensation claim, which, as we have
explained, is central to an assessment of causation and dam‐
ages, is markedly different from the treatment of Mr. Schu‐
macher’s alleged litigation conduct. While the complaint de‐
scribes the conduct in some detail, it describes the underlying
workers’ compensation claim in rather summary fashion.
Specifically, while the complaint identifies the injured party
as John Marzano, it tells us nothing about his claimed injury
or his claim against his employer. Instead, it summarily states
that “[p]rior to August 2006, there existed certain factual de‐
fenses and a medical causation defense to the Marzano claim.”16
West Bend’s brief on appeal invites our attention to para‐
graph 25 of the Second Amended Complaint as “set[ting]
forth [its] factual allegations concerning defendants’ breach of
15 The briefs and the oral argument included significant argument about
what precisely Mr. Schumacher conceded. West Bend asserts that he con‐
ceded liability on the whole claim. The defendants assert that he simply
agreed to pay TTD benefits and the question of final liability remained
open until 2010. They ask the court to notice the terms of the eventual set‐
tlement agreement reached in the case, which state that no admission of
liability has been made by the employer. In their view, we can notice this
document as a public record and disregard the contrary allegation, despite
our general obligation to take the allegations of the complaint as true un‐
der Rule 12(b)(6). We decline to resolve this dispute because for the rea‐
sons stated below, we find that the claim, even as alleged, is insufficient
to survive dismissal.
16 R.71 at 2 (emphasis added).
No. 14‐2731 13
duty, proximate cause and damages.”17 That paragraph of the
complaint contains an abbreviated description of Mr. Schu‐
macher’s claimed errors, but, with respect to the crucial ele‐
ments of causation and damages, says only that West Bend
“was forced to accept a disadvantageous position which greatly
compromised its ability to defend the claim.”18 This same sort
of general language appears in paragraph 28; there West Bend
refers to a loss of “valuable factual and legal defenses that would
have eliminated or substantially reduced any liability of
[West Bend] to the claimant.”19 These allegations are conclu‐
sory assertions and certainly do not set forth a plausible de‐
scription of a lost defense that, absent Mr. Schumacher’s al‐
leged neglect, would have assured West Bend’s success on the
underlying claim. Iqbal, 556 U.S. at 678–79.
West Bend has not invited our attention to any other fac‐
tual allegations which detail the “valuable factual and legal
defenses” lost because of Mr. Schumacher’s litigation con‐
duct. In its appellate brief, West Bend does assert that it “is
prepared to offer evidence that, had defendants not commit‐
ted the breaches from the standard of care, the Marzano claim
would likely have gone in an entirely different direction,” and
indeed, that “there is a strong likelihood [that] West Bend
could have either won the entire case or significantly reduced
the amount of money it ultimately paid.”20 But again, even
now, it does not tell us what these defenses are or how they
17 Appellant’s Br. 18.
18 R.71 at 5 (emphasis added).
19 Id. at 6 (emphasis added).
20 Appellant’s Br. 19.
14 No. 14‐2731
would have produced near or total success in workers’ com‐
pensation proceedings.21
The complaint’s description of Mr. Schumacher’s conduct
does include an allegation that, prior to the date of the sched‐
uled workers’ compensation hearing,
defendant Schumacher possessed other docu‐
mentation and information to support a denial
of compensabil[i]ty [of the Marzano claim], in‐
cluding: (a) the claimant’s completion of the
day’s work on the day of the alleged incident;
(b) the fact that the claimant continued to work
following the alleged incident for an additional
two weeks until he was laid off on September
28, 2005; and (c) the fact that the claimant’s own
treating physician, Dr. Sheinkop, could not find
any change in the condition of his knee after the
alleged incident, as it had already been deter‐
mined that the claimant was in need of knee re‐
placement surgery.[22]
21 We have held that “[w]e may consider new factual allegations raised
for the first time on appeal provided they are consistent with the com‐
plaint.” Smoke Shop, LLC v. United States, 761 F.3d 779, 785 (7th Cir. 2014)
(internal quotation marks omitted); see also Hrubec v. Natʹl R.R. Passenger
Corp., 981 F.2d 962, 963–64 (7th Cir. 1992) (noting that new facts may be
added by affidavit or brief, even an appellate brief). Moreover, we have
applied the rule even where a party has amended the complaint in the
district court in an attempt to remedy deficiencies. See generally Smoke
Shop, LLC, 761 F.3d 779; Highsmith v. Chrysler Credit Corp., 18 F.3d 434, 439–
40 (7th Cir. 1994) (finding new allegations raised on appeal and not in‐
cluded in previously amended pleadings sufficient to defeat dismissal).
22 R.71 at 3–4.
No. 14‐2731 15
It also asserts that an unspecified “witness with relevant tes‐
timony” was not available to testify and complains that
Mr. Schumacher did not request a continuance.23 It continues
by faulting Mr. Schumacher for “reveal[ing] all of this docu‐
mentation and information—all the key theories of [West
Bend]’s defense—to counsel for claimant, which severely
compromised [West Bend’s] ability to continue to defend the
workers’ compensation claim.”24 We are given no description,
however, as to whether or how this evidence would have pro‐
duced a successful outcome for West Bend.
With respect to the allegation that Mr. Schumacher had
stipulated improperly to the compensability of the claim,
West Bend at least makes the allegation that it was required
to pay substantial amounts of money because of the stipula‐
tion. But it makes no concrete allegation that its final liability
in this matter would have been any different if the stipulation
had not occurred.
The Second Amended Complaint therefore leaves us to
speculate as to whether and how West Bend would have pre‐
vailed on the underlying claim in the absence of the missteps
of which it now accuses its former attorney. But, as our col‐
league in the district court recognized throughout West
Bend’s several attempts to improve the complaint, a plaintiff
“must plead some facts that suggest a right to relief that is
beyond the speculative level.” In re marchFIRST Inc., 589 F.3d
23 Id. at 3.
24 Id. at 4. We note in passing that the alleged harmful “disclosures” of
facts all reference facts clearly already known to the claimant, i.e., that he
continued working for a time and that his physician had made a prior di‐
agnosis.
16 No. 14‐2731
at 905 (internal quotation marks omitted). The district court
correctly concluded that the allegations that deal with the
substance of the underlying compensation claim and defense
fall short of that standard because they provide no plausible
description as to how the attorney’s negligence, if it occurred,
was the cause of harm to West Bend. Even when evaluated as
a whole, the complaint fails to describe, in even the most ru‐
dimentary of ways, “that but for [Mr. Schumacher’s] negli‐
gence, the plaintiff would have been successful in th[e] under‐
lying” workers’ compensation action. Tri‐G, Inc. v. Burke,
Bosselman & Weaver, 856 N.E.2d 389, 395 (Ill. 2006). West Bend
simply has failed to allege plausibly, despite multiple amend‐
ments, that it lost actual, specific, meritorious defenses in the
Marzano claim because of Mr. Schumacher’s conduct.
Conclusion
The Second Amended Complaint fails to plead adequately
a claim for legal malpractice under Illinois law. Specifically, it
fails to allege plausibly that the outcome of the underlying ac‐
tion would have been more favorable to West Bend, had it not
been for Mr. Schumacher’s alleged litigation conduct. We
therefore affirm the judgment of the district court.
AFFIRMED
No. 14‐2731 17
HAMILTON, Circuit Judge, dissenting. The majority accu‐
rately describes the general legal principles that apply to post‐
Iqbal federal pleading and to legal malpractice claims in Illi‐
nois. I must respectfully dissent, however, from the majority’s
application of those principles. The majority applies the post‐
Iqbal pleading standards so stringently as to reinstate, in effect
if not in name, the obsolete code pleading regime replaced by
the Federal Rules of Civil Procedure in 1938. See generally Ar‐
thur R. Miller, From Conley to Twombly to Iqbal: A Double Play
on The Federal Rules of Civil Procedure, 60 Duke L.J. 1 (2010).
The majority’s application is so stringent that it runs afoul
even of Iqbal itself. I would reverse the dismissal of the action.
The majority acknowledges that plaintiff has alleged suf‐
ficiently that defendant Schumacher owed it a duty of profes‐
sional care and breached that duty. Ante at 11. Those points
are clearly correct. Schumacher conceded his client’s liability
for the claimant’s worker’s compensation claim without his
client’s consent. He also did so without having taken basic
steps to learn the relevant facts. At this stage of this federal
case, we must assume these allegations are true.
The majority tells us that what is missing is “a plausible
description of a lost defense that, absent Mr. Schumacher’s al‐
leged neglect, would have assured West Bend’s success on the
underlying claim.” Ante at 13, citing Iqbal. I must respectfully
disagree. The path of an available defense was quite clear. In
the operative complaint and its briefs to the district court and
this court, West Bend makes specific factual allegations show‐
ing a solid defense on the merits. The claimant sought com‐
pensation for a workplace injury to his knee. The complaint
alleged that at the time Schumacher conceded liability with‐
out his client’s consent, he knew the following:
18 No. 14‐2731
the claimant completed work on the day of his al‐
leged injury.
after the alleged injury, the claimant continued to
work another two weeks, until he was laid off.
before the alleged workplace knee injury, the claim‐
ant’s physician had already determined that the
claimant needed knee replacement surgery.
the claimant’s own treating physician could not
find any change in condition in the claimant’s knee
after the alleged workplace knee injury.
available documents indicated that the claimant
did not report the alleged workplace injury when it
supposedly happened or even until well after he
was laid off and had retained an attorney.
See Second Amended Cplt. ¶¶15, 17; Dkt. No. 77 at 4 (Mem.
in Opp. to Motion to Dismiss); Appellant’s Br. at 5. Those fac‐
tual allegations surely provide “a plausible description of a
lost defense”: there was no workplace injury at all, or certainly
not one that required surgery that the claimant’s own physician
had already said he needed before the alleged injury.
The majority acknowledges these allegations, ante at 14–
15, but complains that we “are given no description as to
whether or how this evidence would have produced a suc‐
cessful outcome for West Bend,” and that we are left to “spec‐
ulate as to whether and how West Bend would have prevailed
on the underlying claim….” Ante at 15.
There is nothing speculative about the defenses that Schu‐
macher abandoned for his client by conceding liability. They
are easy to see. If in fact the claimant had already been told
No. 14‐2731 19
that he needed a knee replacement, or if in fact the claimed
workplace injury was not reported at the time and did not
prevent the claimant from continuing to work both that day
and for weeks afterward, a trier of fact could find as a matter
of fact that there simply was no compensable workplace in‐
jury.1
West Bend may or may not be able to prove its allegations,
but these allegations go far beyond “threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements.” See Iqbal, 556 U.S. at 678, citing Twombly, 550 U.S.
at 555. From West Bend’s detailed factual allegations, a judge
can easily draw on her “experience and common sense,” Iqbal,
556 U.S. at 679, to conclude that West Bend has alleged plau‐
sibly that Schumacher’s breaches of his professional duty in‐
jured West Bend and support a claim for legal malpractice.
In parsing the complaint the majority has focused on the
general language in the complaint, criticized it for being “con‐
clusory,” and then overlooked the supporting details. In my
view the complaint is far more detailed than necessary, but it
is surely at least sufficient. See, e.g., Runnion v. Girl Scouts of
Greater Chicago and Northwest Indiana, 786 F.3d 510, 517–18 (7th
Cir. 2015) (reversing dismissal), citing Johnson v. City of Shelby,
574 U.S. ___, 135 S. Ct. 346 (2014) (summarily reversing appel‐
late dismissal on the pleadings); see also Erickson v. Pardus,
551 U.S. 89, 93–94 (2007) (summarily reversing dismissal on
1 Given these allegations, I do not understand the majority’s assertion
that “even now [West Bend] does not tell us what these defenses are or
how they would have produced near or total success in workers’ compen‐
sation proceedings.” Ante at 13–14. At the pleading stage, what further
detail is needed?
20 No. 14‐2731
pleadings for supposed failure to alleged injury and causa‐
tion).
As the Supreme Court explained in Johnson, five years af‐
ter Iqbal was decided: “Petitioners stated simply, concisely,
and directly events that, they alleged, entitled them to dam‐
ages from the [defendant]. Having informed the [defendant]
of the factual basis for their complaint, they were required to
do no more to stave off threshold dismissal for want of an ad‐
equate statement of their claim.” 574 U.S. at ___, 135 S. Ct. at
347.
Finally, one of defendants’ causation arguments deserves
some specific attention. Defendants argue that the complaint
and Illinois law of workers’ compensation show that West
Bend remained free, after replacing Schumacher, to contest its
liability on the claim. The defense theory is that Schumacher’s
breaches of professional duty could not have been proximate
causes of West Bend’s alleged losses. Appellees’ Br. at 30–33.
This defense theory cannot be accepted on the pleadings
for any of four independently sufficient reasons. First, as de‐
fendants conceded at oral argument, in reviewing only the
pleadings, we must assume that Schumacher’s concession of
liability applied to the entire case, not just to interim pay‐
ments at the early stages of the case. Second, even if the unau‐
thorized concession was limited to the interim payments,
West Bend has alleged that the concession caused it to make
substantial interim payments that it could not recover. Third,
even if West Bend retained the theoretical ability to contest
liability after the unauthorized concession, it has alleged that
it lost that ability to do so as a practical matter given the real‐
ities of the workers’ compensation system. Fourth, West Bend
No. 14‐2731 21
claims that Schumacher himself advised it against taking ex‐
actly the course that Schumacher now claims that West Bend
should have pursued.
I cannot judge from the pleadings West Bend’s prospects
for ultimate success, but it has surely alleged a plausible claim
that should proceed past the pleading stage. I respectfully dis‐
sent.