Bassam Assaf v. Trinity Medical Center

In the
United States Court of Appeals
For the Seventh Circuit
No. 15‐2587
BASSAM A SSAF,
Plaintiff‐Appellant,
v.
T RINITY MEDICAL C ENTER ,
Defendant‐Appellee.
Appeal from the United States District Court for the
Central District of Illinois.
No. 4:10‐cv‐04021‐JES— James E. Shadid, Chief Judge.
A RGUED FEBRUARY 24, 2016 — D ECIDED MAY 6, 2016
Before EASTERBROOK, R OVNER , and HAMILTON, Circuit
Judges.
R OVNER , Circuit Judge. This is the second appeal by Dr.
Bassam Assaf concerning his breach of contract action against
Trinity Medical Center (“Trinity Medical”). From 2005 to 2009,
Assaf was employed by Trinity Medical as its medical director
for the epilepsy clinic. Trinity Medical terminated his employ‐
ment in August 2009, and Assaf filed an action for breach of

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2 No. 15‐2587
contract on February 1, 2010. The parties entered into a
settlement agreement on February 26, 2010, under which Assaf
would be employed by Trinity Medical from 2009 until at least
2011 in the position of Director of the Neuroscience Program.
Although the agreement was signed by both parties, the
employment relationship never materialized, and Assaf sought
summary judgment on his claim for breach of that settlement
agreement. The district court granted summary judgment and
the parties prepared for trial regarding damages. Assaf sought
as damages the lost salary for the years in which he was to
have been employed under the settlement agreement, as well
as lost professional fees during that time. The district court
rejected the claim for lost professional fees holding that Assaf
failed to provide an adequate estimate of the loss during
discovery. The district court then entered judgment without
trial awarding Assaf his salary for the years 2009 through 2011
and compensatory damages totaling $172,759 plus $15,000 in
attorneys’ fees.
Assaf filed what would be the first of two appeals to this
court, contesting the court’s refusal to allow damages relating
to lost professional fees. We reversed the district court on that
issue, holding that Assaf had presented a computation of his
lost professional fees, with supporting evidence, after discov‐
ery but before the preparation of any pretrial order, and that he
therefore should have been allowed to proceed with that claim
for damages. Assaf v. Trinity Medical Center, 696 F.3d 681, 686‐
87 (7th Cir. 2012). Accordingly, we reversed the district court’s
order barring evidence of lost professional fees, and remanded
the case for the court to properly ascertain Assaf’s damages. Id.
at 687.

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No. 15‐2587 3
On remand, Assaf proceeded to a jury trial on his claim for
lost professional fees. Assaf sought to establish that his
professional fees from EEG video monitoring and follow‐up of
epilepsy patients decreased as a result of Trinity Medical’s
failure to rehire him as required by the settlement agreement,
because his relationship with Trinity Medical was a driving
factor in such referrals. The court used a verdict form asking
the jury “Did Dr. Assaf prove that he sustained damages as
explained in these instructions”“ to which the jury responded
“No.” Judgment was entered for Trinity Medical and the
district court denied Assaf’s subsequent motion for a new trial.
Assaf now appeals that determination.
Assaf asserts that the district court erred in numerous
evidentiary rulings, including the admission of testimony from
Trinity Medical’s expert, the admission of a number of exhibits
by Trinity Medical, and the allowance of testimony relating to
disputes and litigation involving Assaf and his former employ‐
ers. In addition, Assaf argues that the court erred in determin‐
ing that the damages sought for the loss of professional fees
were consequential rather than direct damages. We need not
address these challenges, however, because Assaf’s arguments
to this court on appeal establish that he has no valid claim to
damages for lost professional fees, and therefore the alleged
errors—even if established—are harmless.
As the party seeking to recover damages, Assaf bears the
burden of proving that he did, in fact, suffer actual damages
and must establish a reasonable basis for computation of those
damages. TAS Distrib. Co. v. Cummins Engine Co., 491 F.3d 625,
632 (7th Cir. 2007); Merry Gentleman, LLC v. George & Leona
Prods., Inc., 799 F.3d 827, 830 (7th Cir. 2015); Pamado, Inc. v.

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4 No. 15‐2587
Hedinger Brands, LLC, 785 F. Supp. 2d 698, 708 (N.D. Ill. 2011).
Although we held in our earlier opinion that Assaf could bring
a claim for the loss of professional fees, that opinion merely
addressed whether Assaf had timely submitted computations
establishing the amount of professional fees at issue. Assaf,
696 F.3d at 686‐87. That appeal did not present the issue as to
whether Assaf had evidence that he actually incurred those
losses.
Assaf’s claim for the loss of professional fees was based on
the allegation that his practice experienced a decrease in
referrals and corresponding loss of fees as a result of Trinity
Medical Center’s breach of contract. According to Assaf, those
professional fees were generated when he performed services,
and the breach of contract caused a decrease in referrals and
corresponding decrease in professional fees.
The problem with this claim, however, is that those
professional fees were not paid to Assaf. The fees were paid
directly to the practice, and Assaf concedes on appeal that he
had no ownership interest in that practice and that the fees did
not accrue to him personally. Assaf acknowledges that because
of his immigration status, the practice is owned by his wife not
by him. Moreover, Assaf does not claim that his salary or other
compensation was affected by the alleged decrease in profes‐
sional fees. In fact, in his brief and at oral argument, he
conceded that he is not claiming a loss of income. Therefore,
Assaf is attempting to claim damages for a loss of professional
fees to the practice, and to his wife as owner of that practice,
which did not adversely impact his own income. His wife is
not a party to this action, and Assaf has failed to establish that
he, as opposed to his wife or the practice, experienced any loss

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No. 15‐2587 5
of professional fees. In fact, on appeal he asserts that it does not
matter where the fees would have gone, but only that they
were generated by his performance of services. But Assaf
received a salary for those services which was unchanged
throughout the time period at issue, and he denies on appeal
that his salary or income was adversely affected by the loss of
fees. In short, he provides no argument to differentiate himself
from any employee of a business, and asserts no basis for
allowing such an employee to recover damages for lost profits
of a business in which the employee has no ownership or legal
interest and in which the employee alleges no impact on his
own compensation. Assaf has failed to argue that he has any
interest in the professional fees for which he seeks damages. If
he were able to prove any errors in the trial, a dubious proposi‐
tion in itself, those errors would be harmless because his
admissions establish that he in fact suffered no loss of profes‐
sional fees. The decision of the district court is AFFIRMED.

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