Steven Kallal v. Ciba Vision Corporation

Filing

Filed opinion of the court by Judge Wood. The judgment of the district court is AFFIRMED. Diane P. Wood, Chief Judge; Kenneth F. Ripple, Circuit Judge and John Daniel Tinder, Circuit Judge. [6643488-1] [6643488] [13-1786]

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In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-1786
STEVEN KALLAL,
Plaintiff-Appellant,
v.
CIBA VISION CORPORATION, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 09 C 3346 — Rebecca R. Pallmeyer, Judge.

____________________
ARGUED OCTOBER 1, 2014 — DECIDED FEBRUARY 24, 2015
____________________
Before WOOD, Chief Judge, and RIPPLE and TINDER, Circuit
Judges.
WOOD, Chief Judge. More than 30 million people in the
United States wear contact lenses, according to the Centers
for Disease Control and Prevention. See http://www.cdc.
gov/contactlenses/fast-facts.html (last visited Feb. 24, 2015).
People like them for a number of reasons: vanity, effectiveness of vision correction, convenience, to name a few. But
contacts come at a price. Serious eye infections that can lead

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to blindness affect up to 1 out of every 500 contact lens users
per year, id., and lesser complications are common. Steven
Kallal experienced the latter kind of problem during the five
months when he wore lenses made by CIBA Vision Corporation.
Nearly two years after he abandoned his CIBA lenses,
Kallal sued the company in Illinois state court; he alleged
that CIBA’s lenses were defective, and that the defect had
hurt his eyes. Indeed, CIBA itself had spotted a problem
with some of its lenses and had issued a major recall. CIBA
removed Kallal’s case to federal court and eventually moved
for summary judgment on the ground that Kallal never used
the recalled lenses. Noting that Kallal’s proof of defect relied
entirely on the recall, and that the evidence showed that
Kallal himself never purchased any of the recalled lenses, the
district court granted judgment for CIBA. We affirm.
I
Kallal began his use of CIBA’s O2 Optix lenses in December 2006 when he received a sample pack from Rose Optical, in Godfrey, Illinois. He then purchased more O2 lenses
from Rose Optical and began wearing them in January 2007.
A week after he started using the purchased lenses, Kallal
experienced sharp pain in his eyes. He did not, however,
immediately discontinue use of the lenses, perhaps because
he had had eye problems with other contacts before then.
Instead, he limited his use of the contacts to times when he
exercised. He continued to wear the O2 lenses off and on for
a few months, and even purchased another set in March
2007. Kallal stopped wearing the lenses altogether after May
5, 2007.

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In the meantime, CIBA had discovered that a large number of the contact lenses it manufactured had poor ion permeability and thus did not permit enough oxygen to reach
the cornea. On January 12, 2007, the company recalled 11
million contact lenses for this reason. The recalled lots included some O2 Optix lenses ordered by Rose Optical.
On May 1, 2009, Kallal sued CIBA in the Circuit Court of
Cook County. Alleging that the O2 lenses caused his pain,
Kallal asserted that CIBA was liable for negligence, strict
product liability, and breach of implied warranty. CIBA
timely removed the case to federal court on June 3, 2009, relying primarily on the court’s diversity jurisdiction. See 28
U.S.C. § 1332. (Kallal is a citizen of Illinois; at the time suit
was filed, CIBA was incorporated in Delaware and had its
principal place of business in Georgia, and Kallal alleged
that more than $75,000 was at stake.) After more than two
years of motion practice, some discovery, and other delays,
CIBA moved for summary judgment on the ground that
Kallal never used the recalled lenses. It relied on evidence
showing that none of lenses shipped to and later recalled
from Rose Optical were in Kallal’s prescription strength
of -3.75 diopters. On January 29, 2013, the district court
granted the motion for summary judgment on all counts.
II
Kallal offers three reasons why, in his view, we should
overturn the district court’s decision: first, he contends that
the district court overlooked genuine issues of material fact;
second, he urges that the district court abused its discretion
by denying his request for additional discovery under Rule
56(d); and finally, he complains that the court should not
have relied on preemption as an independent basis for deci-

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sion after preventing him from developing that theory
through discovery. Our review is de novo, see Hanover Ins. Co.
v. N. Bldg. Co., 751 F.3d 788, 791 (7th Cir. 2014), and we bear
in mind that we may affirm “on any ground for which there
is support in the record.” Samuelson v. LaPorte Cmty. Sch.
Corp., 526 F.3d 1046, 1051 (7th Cir. 2008).
A
Before ruling on CIBA’s summary judgment motion, the
district court had pared Kallal’s case down somewhat in a
ruling of June 9, 2010, on CIBA’s motion to dismiss. Kallal
has not challenged that ruling. This means that he has only
one legal theory left for why CIBA would be liable for his
eye pain: that he used lenses that were subject to CIBA’s 2007
recall. As we already have noted, however, during discovery,
CIBA showed that none of the lenses shipped to Rose Optical that fell within the terms of the recall matched Kallal’s
prescription. Kallal admits that he bought lenses only from
Rose Optical. It is therefore hard to see what is left to argue
about. Somehow, Kallal must show that his O2 lenses were
included in the recall, despite the documentation to the contrary. He believes that he can meet this burden with circumstantial evidence.
Kallal’s strongest argument is that CIBA’s voluntary recall
was so huge that the company could not possibly have
known which lenses were defective. More than that, Kallal
points out that some of the lenses he wore were manufactured in Batam, Indonesia, in the plant that had also manufactured the recalled lenses. From that, he draws the inference that every lens made in Batam must have been similarly
flawed. The problem is that the record does not support that
final leap. CIBA demonstrated, to the contrary, that the

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lenses from the Batam plant in Kallal’s prescription strength
were not part of a recalled lot.
The district judge dismissed Kallal’s evidence as a mere
“wisp of circumstantial evidence.” We agree with her that it
is too thin on its own to carry the day. Kallal has not demonstrated what defect his O2 lenses had. Instead, he presents
an argument that sounds like res ipsa loquitur: a substantial
percentage of lenses from the Batam plant were defective;
Kallal wore lenses made at that plant; ergo, Kallal’s lenses
were defective. To defeat summary judgment, however, he
needed more. Much more, in fact. Kallal admitted to having
reacted poorly to other companies’ contact lenses. No design
defect theory would establish CIBA’s liability if Kallal is
simply allergic to all contacts. But Kallal never pointed to
evidence supporting a finding that not all of his contact use
has led to discomfort and pain. Instead, he asked the court to
“question the reliability” of CIBA employees and to be “suspicious of records showing that no recalled lenses in Kallal’s
prescription were shipped to Rose Optical.” This is too
vague to be useful.
Kallal’s remaining arguments are also weak. He argues,
for instance, that a physician’s deposition and an expert witness’s affidavit both created disputes of material fact about
his injury. But they do not. The physician, Dr. Pathak, did no
more than state at his deposition, in response to a hypothetical question based on a causal assumption about the link
between two characteristics of contact lenses, that Kallal’s
injuries could have been caused by defective lenses. He did
not offer an opinion on the question whether the lenses that
Kallal wore actually caused his injuries. Len Czuba, an engineer Kallal put forth as a medical device expert, testified that

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low ion permeability could cause injuries similar to Kallal’s.
That testimony, however, sheds no light on the question
whether Kallal’s lenses were defective. We accept that Kallal
exhibited symptoms after wearing CIBA’s O2 Optix lenses,
but the record needs to show more than post hoc, ergo propter
hoc: the mere fact that a person suffers pain when using a
product does not, by itself, prove that the product is defective. Kallal offered no factual support that would permit a
reasonable trier of fact to conclude his injuries stemmed
from defective CIBA lenses and not from a general reaction
to all contact lenses or something else altogether.
To recap, Rose Optical—Kallal’s sole supplier of contact
lenses during the relevant period—never received CIBA
lenses in Kallal’s prescription that were within the scope of
the recall. Looking exclusively at the evidence before the
court on the defective product theory, we conclude that
CIBA was entitled to summary judgment.
B
Kallal next argues that the record was incomplete, because the district judge abused her discretion when she denied his request for more discovery. Kallal had hoped to depose CIBA’s new interim head of distribution in order to ask
him about the business records on which CIBA was relying
to prove that Kallal did not use any of the recalled lenses.
Kallal failed, however, to file a Rule 56(d) affidavit explaining why he needed additional discovery. His failure to do so
fully justified the district court’s ruling. See Woods v. City of
Chicago, 234 F.3d 979, 990 (7th Cir. 2000) (concluding that, at
summary judgment, the nonmovant’s failure to submit an
accompanying affidavit “alone justifies affirmance of the district court's decision” to deny additional discovery).

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Kallal’s only response to this well-established rule is an
argument that the 2010 Amendments to the Federal Rules of
Civil Procedure have eliminated the requirement of a formal
affidavit for a motion under Rule 56(d). Nothing in Rule
56(d) or the commentary to that subsection, however, says
any such thing. Kallal notes that Rule 56(c), which sets out
the procedure for describing the facts, no longer requires a
formal affidavit. See FED. R. CIV. P. 56 (Cmte. Note to 2010
Amdt.). Immediately after that statement, the commentary
confirms that, as 28 U.S.C. § 1746 permits, “a written unsworn declaration, certificate, verification, or statement subscribed in proper form as true under penalty of perjury”
may “substitute for an affidavit.” Id. Even if this part of Rule
56(c) governs a motion under Rule 56(d), Kallal failed to satisfy it.
A supporting document would in any event not have
guaranteed more discovery. “The decision to cut off discovery is committed to the management skills of the district
court.” Stevo v. Frasor, 662 F.3d 880, 886 (7th Cir. 2011) (quotation omitted). The district judge did not abuse her discretion when she decided that Kallal did not need to depose
CIBA’s new interim head of distribution. Kallal already had
deposed the old one, Kent Goethe. He asked Mr. Goethe
about the business records confirming that no -3.75 lenses
were recalled from Rose Optical. The district judge was well
within the bounds of reason when she decided that Mr. Goethe’s deposition would suffice.
Kallal also complains about the district court’s decisions
to suspend discovery until October 2011 and then to set a
six-month time limit on discovery, “despite the fact that this
was a complex product liability case.” Perhaps he means to

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say that the court took an iron-fisted approach. But the record reflects a different reality: the district judge gave Kallal
multiple opportunities and extensions in his filings and discovery requests. Although the court denied his last request
for more discovery, that denial came at the end of a long line
of requests the court had granted. Nothing in the court’s rulings on this aspect of the case amounts to reversible error.
C
Finally, Kallal claims the district judge erred when she
mentioned in her opinion granting summary judgment that
Kallal’s claims were most likely preempted by the Medical
Device Amendments (MDA) to the Food, Drug, and Cosmetic Act. CIBA’s O2 contact lenses are Class III devices within
the meaning of that statute. Under the MDA, federal law
preempts state law tort claims with respect to Class III medical devices. Covered devices must be approved by the Food
and Drug Administration (FDA) pursuant to the agency’s
pre-market approval process. Preemption is not absolute,
however; the Supreme Court has interpreted the statute to
allow any state tort claim that is “parallel” to a federal one
(i.e., if it is a “remedy for claims premised on a violation of
FDA regulations”). Riegel v. Medtronic, Inc., 552 U.S. 312, 330
(2008). Kallal says that his suit fits under the Riegel exception
because CIBA failed to list ion permeability as a “material
characteristic” in its premarket approval list. CIBA responds
that the FDA did not require it to meet any ion permeability
threshold, and Kallal did not offer any evidence to the contrary.
We do not need to resolve this issue, for the simple reason that the district court did not rely on preemption as a
ground for its decision. Its opinion leaves no doubt that the

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ruling was based on the facts we already have discussed:
Kallal never used the recalled lenses nor did he provide any
other evidence that the lenses he used were defective. The
preemption analysis is classic dicta, because it “can be
sloughed off without damaging the analytical structure of
the opinion.” United States v. Crawley, 837 F.2d 291, 292 (7th
Cir. 1988). We thus have nothing further to say about it.
III
Once CIBA demonstrated that the lenses that it manufactured and Kallal used were not subject to the 2007 recall, the
company was entitled to summary judgment. The district
judge reasonably managed the discovery process and did
not abuse her discretion in denying Kallal’s noncompliant
Rule 56(d) motion. Because the court did not rely on
preemption as a ground for decision, anything it said on that
topic can be disregarded as dicta. The judgment of the district court is AFFIRMED.