Ciomber, James v. Cooperative Plus Inc ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3807
JAMES CIOMBER,
Plaintiff-Appellant,
v.
COOPERATIVE PLUS, INC.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 04 C 50129—Philip G. Reinhard, Judge.
____________
ARGUED OCTOBER 22, 2007—DECIDED MAY 28, 2008
____________
Before KANNE, EVANS, and WILLIAMS, Circuit Judges.
KANNE, Circuit Judge. James Ciomber sued Cooperative
Plus, Inc., alleging that the company was responsible for
an explosion fueled by liquefied-petroleum (LP) gas that
injured him and damaged his house. After the dis-
trict court excluded the testimony of Ciomber’s expert
witness, see Fed. R. Civ. P. 37(c)(1), and disregarded
Ciomber’s statement of proposed material facts, see Loc. R.
56.1(b) (N.D. Ill.), it granted Cooperative Plus sum-
mary judgment because he proffered no evidence
showing that the company caused the explosion. We
affirm.
2 No. 06-3807
I. HISTORY
In the middle of the night on November 18, 2001,
Ciomber’s house in Poplar Grove, Illinois, exploded. The
building was mostly leveled, and those areas that were
not leveled caught fire. Ciomber, who was in the house
at the time, suffered severe injuries as a result, but amaz-
ingly (and thankfully) survived.
In November 2003, Ciomber filed suit in Illinois state
court against Cooperative Plus, the company that pro-
vided LP-gas for his house, alleging that the company
negligently caused the destruction of his house and his
resulting injuries. Ciomber claimed that although he
repeatedly reported to the company the existence of an LP-
gas leak in his basement, the company did not take appro-
priate steps to repair the leak. He continued that, because
Cooperative Plus breached its duty to fix the leak, LP-gas
accumulated in his basement “in such a volume and in
such a concentration so as to be susceptible to ignition by
an unknown source.” As Ciomber concluded in para-
graph 12 of his complaint, the explosion and his injuries
were “direct and proximate result[s] of the breaches of
the duties” Cooperative Plus owed to him. Cooperative
Plus denied Ciomber’s numerous allegations in its an-
swer; as relevant here, the company denied that Ciomber
“was injured in the manner or to the extent claimed” in
paragraph 12, and “further denie[d] the remaining allega-
tions contained in [that paragraph].”
Shortly after Cooperative Plus filed its answer, the
company successfully removed the action to federal dis-
trict court on the basis of diversity jurisdiction. See 28
U.S.C. §§ 1332, 1441. Discovery commenced in May 2004.
Although the court initially ordered discovery to cease
in December 2004, it continued well into 2006 because,
No. 06-3807 3
among other reasons, Ciomber’s attorneys—husband and
wife Karl Szymanski and Cynthia Szymanski Koroll—
made numerous motions for extensions of discovery
deadlines. We need not recount the reasons underlying
those motions, but what is pertinent is that, between
May 2005 and September 2005, counsel moved five
times to extend discovery deadlines, including the date by
which they needed to disclose Ciomber’s expert-witness
report. See Fed. R. Civ. P. 26(a)(2). After Mr. Szymanski
brought the fifth of these motions in September, the
court warned him that, although it would grant the
motion, he would have no more additional time to dis-
close the report; the court then stated that Mr. Szymanski
had until October 31, and set a status hearing for Novem-
ber 2 to address other unresolved discovery matters.
Ciomber’s attorneys disclosed the Rule 26(a)(2) report
of his expert witness, Kim Mniszewski, on November 1,
one day after the October 31 deadline. In the “report,”
Mniszewski merely provided eight terse statements
concluding that Cooperative Plus was responsible for the
destruction of Ciomber’s house; the grounds for his
conclusions were, in most instances, even more laconic.
For example, Mniszewski concluded that “[t]he cause of
the explosion is [sic] a buildup of [LP] gas from failed [sic]
pipe connection in the basement area.” Mniszewski
“explained” that his conclusion was based on “inspection,
analysis.” Mniszewski also provided vague references
to documents that he purportedly reviewed before form-
ing his conclusions: (1) a county sheriff’s report;
(2) “[v]arious deposition transcripts and corresponding
exhibits”; (3) the National Fire Protection Association’s
National Fuel Gas Code and LP Gas Code; and (4) Na-
tional Propane Gas Association “documents.”
4 No. 06-3807
Ciomber’s attorneys also filed on November 1 another
motion for more time to disclose the report; in the
motion, counsel implied that the report, as disclosed,
was incomplete, and stated that Mr. Szymanski was
unable to disclose a completed report because he was
hospitalized. The district court addressed the motion at the
November 2 status hearing. Ms. Szymanski Koroll ap-
peared at the hearing on behalf of Ciomber, and ex-
plained that Mr. Szymanski suffered a heart attack on
October 30, which was why they were late in disclosing
Mniszewski’s report. Ms. Szymanski Kroll further stated
that the disclosed report was “still not what [she]
want[ed],” and asked for seven days to disclose an
amended report. The court readily granted Ms. Szymanski
Koroll’s request; however, the amended report that
she promised was never disclosed.
Nearly three months later, Cooperative Plus filed two
motions, one asking the district court to exclude Mniszew-
ski’s testimony, and another seeking for summary judg-
ment. Cooperative Plus contended that, because
Mniszewski’s report did not comply with Rule 26(a)(2)’s
requirements, Ciomber should be prohibited from intro-
ducing Mniszewski’s testimony in support of his negli-
gence claim. See Fed. R. Civ. P. 37(c)(1). Cooperative Plus
also asserted that without Mniszewski’s testimony,
Ciomber could not establish that the company’s negligence
caused the destruction of his house. Specifically, the
company pointed to Ciomber’s deposition testimony, in
which he admitted that on the day before the explo-
sion he moved his LP-gas-fueled dryer away from the
dryer’s LP line, and that the dryer did not operate after
he moved it. Cooperative Plus therefore argued that,
without Mniszewski’s testimony countering Ciomber’s
admissions, Ciomber could not show that the company’s
negligence caused the LP-gas leak that led to the explosion.
No. 06-3807 5
The district court took Cooperative Plus’s motions under
advisement and instructed the parties to proceed with
deposing Mniszewski. In addition to elaborating on his
report, Mniszewski testified that Mr. Szymanski did not
ask him to prepare the report until October 25, 2005—less
than a week before the district court’s final deadline for
the report’s disclosure. Mniszewski further stated that no
one assisted him when drafting the report, and that he
did not submit the report to anyone for review or comment
before it was disclosed.
The parties deposed Mniszewski twice over a month-
long period, and during that time Ciomber responded to
Cooperative Plus’s motion for summary judgment. As part
of his filing, Ciomber submitted a response to Coopera-
tive Plus’s proposed material facts, as required by Loc. R.
56.1(b). But instead of presenting both a response to
Cooperative Plus’s statement of proposed facts and a
separate statement of his own proposed facts, Ciomber
commingled the two statements to create an argumenta-
tive response to Cooperative Plus’s filing.
Not long after briefing completed, the district court
granted both Cooperative Plus’s motion to exclude
Mniszewski’s testimony and its motion for summary
judgment. In a consolidated order, the court excluded
Minzewski’s deposition testimony, concluding that
Ciomber “offered no justification for his failure to provide
a complete expert report in a timely fashion.” The court
then stated that it would disregard the facts Ciomber
presented in his Rule 56.1 response because the filing
did not comply with Loc. R. 56.1(b). With no admissible
expert testimony and no suitable statement of proposed
facts, the court stated, Ciomber proffered no evidence to
rebut Cooperative Plus’s evidence showing that Ciomber
6 No. 06-3807
caused an LP-gas leak when he moved his dryer, and that
his house was destroyed when the leaking gas ignited. The
court therefore concluded that there was no material
dispute regarding the issue of causation, and granted
summary judgment for Cooperative Plus.
II. ANALYSIS
Ciomber and Cooperative Plus do not dispute that
Ciomber’s negligence claim is governed by Illinois law.
And under Illinois law, Ciomber needed to establish that
(1) Cooperative Plus owed a duty of care to him as his LP-
gas provider; (2) the company breached that duty; and
(3) the company’s breach caused his injuries and the
destruction of his house.1 See Adams v. N. Ill. Gas. Co., 809
1
For clarity’s sake, we will slightly alter the terminology used
by Illinois courts when we discuss the elements of Ciomber’s
negligence action. Instead of saying that Ciomber needed to
prove that Cooperative Plus “proximately caused” the explo-
sion of his house (as Illinois courts would, see, e.g., Adams,
809 N.E.2d at 1257) we will say only that Ciomber was re-
quired to prove that the company “caused” the explosion. This
simplification stems from Illinois courts’ definition of the term
“proximate causation,” and how the parties here employ the
term. Under Illinois law, proximate causation encompasses
both “causation-in-fact” and “legal causation.” See First Spring-
field Bank & Trust v. Galman, 720 N.E.2d 1068, 1072-73 (Ill.
1999); see also People v. Hudson, 856 N.E.2d 1078, 1083 (Ill.
2006). “Causation-in-fact” exists where “there is a reasonable
certainty that a defendant’s acts caused the injury or damage,”
meaning that the injury would not have occurred absent the
conduct. First Springfield Bank, 720 N.E.2d at 1072. In contrast,
(continued...)
No. 06-3807 7
N.E.2d 1248, 1257 (Ill. 2004); Bajwa v. Metro. Life Ins. Co.,
804 N.E.2d 519, 526 (Ill. 2004). Here, only the issue of
causation is in play; the sole ground for the district court’s
grant of summary judgment was that Ciomber proffered
no evidence to counter the undisputed evidence that the
LP-gas leak was caused when he moved his dryer.
Ciomber contends that the district court was wrong
for two reasons. First, he argues that he could have proven
causation had the court not erroneously excluded
Mniszewski’s deposition testimony, or incorrectly disre-
garded his Rule 56.1 response. Ciomber also argues that,
in any event, Cooperative Plus had conceded the element
of causation in several state-court pleadings.
When addressing Ciomber’s arguments, we will first
examine whether the district court abused its discretion
when it excluded Mniszewski’s testimony and disre-
garded Ciomber’s Rule 56.1 response. See Koszola v. Bd. of
Educ., 385 F.3d 1104, 1108 (7th Cir. 2004) (“This court
reviews the decision of a district court concerning compli-
ance with local rules, such as Rule 56.1, only for an abuse
of discretion.”); Musser v. Gentiva Health Servs., 356 F.3d
751, 755 (7th Cir. 2004) (“We review a trial court’s dis-
1
(...continued)
“legal causation” is a question of foreseeability that asks
“whether the injury is of a type that a reasonable person
would see as a likely result of his or her conduct.” Id. Because
causation-in-fact must always be established before any
inquiry regarding legal causation begins, see 1 Dan B. Dobbs,
The Law of Torts § 182 (2001), and because the parties appear to
use the term proximate causation to mean causation-in-fact
only, any discussion in this Opinion regarding causation will
be limited to causation-in-fact.
8 No. 06-3807
covery determinations, including the decision to ex-
clude expert testimony, under an abuse of discretion
standard.”). We will then examine whether the district
court overlooked Cooperative Plus’s purported judicial
admission when granting summary judgment. See Salgado
v. General Motors Corp., 150 F.3d 735, 739 (7th Cir. 1998)
(stating that decisions predicating grant of summary
judgment must be examined separately from grant itself).
We review the grant of summary judgment de novo,
taking the facts in the light most favorable to Ciomber,
the non-moving party. See Foskett v. Great Wolf Resorts,
Inc., 518 F.3d 518, 522 (7th Cir. 2008). And in so viewing
the record, we will examine whether there is a genuine
issue of material fact that precludes judgment as a matter
of law. See Fed. R. Civ. P. 56(C); Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986); Cady v. Sheahan, 467 F.3d 1057,
1061 (7th Cir. 2006).
If Ciomber cannot show that the district court erred
with regard to his Rule 56.1 response, Mniszewski’s
deposition testimony, or Cooperative Plus’s state-court
pleadings, then the court’s grant of summary judg-
ment must stand. The expert testimony, Rule 56.1 response,
and purported admissions constituted the entirety of
Ciomber’s proffer as to the element of causation, and if
the district court properly excluded them then Ciomber
had no other way to dispute the company’s evidence
showing that he caused the explosion by rupturing his
dryer’s LP-gas line. Ciomber would thus be unable to
show that a disputed material fact exists regarding the
essential element of causation, and we would have to
conclude that the district court properly granted sum-
mary judgment for Cooperative Plus. See Celotex Corp.,
477 U.S. at 323; Cady, 467 F.3d at 1061.
No. 06-3807 9
A. The district court’s exclusion of Ciomber’s proffered
evidence of causation
We begin with Ciomber’s challenge to the district
court’s decision to exclude Mniszewski’s deposition
testimony. Under Rule 26(a)(2), a party that intends to
rely upon an expert witness’s testimony is required to
furnish by a date set by the district court a report con-
taining, among other information, “a complete statement
of all opinions” the retained expert will provide, “and the
basis and reasons for them.” Fed. R. Civ. P. 26(a)(2)(B)(I),
(a)(2)(C); see also Jenkins v. Bartlett, 487 F.3d 482, 487 (7th
Cir. 2007); Keach v. U.S. Trust Co., 419 F.3d 626, 639 (7th Cir.
2005). Failure to comply with Rule 26(a)(2)’s requirements
results in sanction: the offending party is not allowed to
introduce the expert witness’s testimony as “evidence on
a motion, at a hearing, or at a trial.” See Fed. R. Civ. P.
37(c)(1); Jenkins, 487 F.3d at 488. This sanction is “ ’auto-
matic and mandatory’ ” unless the offending party can
establish “ ’that its violation of Rule 26(a)(2) was either
justified or harmless.’ ” Keach, 419 F.3d at 639 (quoting
David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003)).
Ciomber does not challenge the court’s conclusion
that Mniszewski’s report failed to comply with Rule
26(a)(2); he thus waives the point. See Williams v. REP Corp.,
302 F.3d 660, 666 (7th Cir. 2002) (“ ’A party waives any
argument that . . . it fails to develop on appeal.” ’ (quoting
Hojnacki v. Klein-Acosta, 285 F.3d 544, 549 (7th Cir. 2002))).
This is probably for the best; Mniszewski’s undeveloped
expert report was woefully deficient, and any argument
to the contrary would have been frivolous. See Fed. R. Civ.
P. 26 advisory committee’s note (stating that Rule 26(a)(2)
expert reports must be “detailed and complete,” and not
“sketchy and vague”); Jenkins, 487 F.3d at 487 (“The
10 No. 06-3807
purpose of the report is to set forth the substance of
the direct examination.” (internal quotation marks and
citation omitted)); Salgado, 150 F.3d at 741 n.6 (“A com-
plete report must include the substance of the testimony
which an expert is expected to give on direct examination
together with the reasons therefor . . . . [It] must include
‘how’ and ‘why’ the expert reached a particular result,
and not merely the expert’s conclusory opinions.”).
Ciomber likewise waives any argument that the defi-
ciencies in the report were justified. See Williams, 302
F.3d at 666.
Ciomber instead contends that the expert report’s
deficiencies were harmless. Specifically, he asserts that
Cooperative Plus cannot claim that it was prejudiced by
the report because the company knew that Mniszewski
was going to be an expert witness before it received his
report. See David, 324 F.3d at 857. Ciomber also suggests
that the report’s shortcomings were cured when his
attorney, Mr. Szymanski, supplemented Mniszewski’s
deficient report by filing with the district court a tran-
script of Mniszewski’s deposition testimony. See id.
Ciomber further argues that the deficient report was
harmless because it was not the result of Mr. Szymanski’s
“bad faith or willfulness,” but was instead due to the
medical emergency that Mr. Szymanski suffered the day
before the deadline for the report’s disclosure. See id.
Ciomber’s arguments fail. Contrary to Ciomber’s
belief, it makes little difference that Cooperative Plus
knew that Mniszewski was his expert witness before he
disclosed the report. Rule 26(a)(2) mandates a com-
plete and detailed report of the expert witness’s opinions,
conclusions, and the basis and reasons for them, see Fed. R.
Civ. P. 26(a)(2)(B)(I), and not merely the expert witness’s
No. 06-3807 11
identity. Indeed, Rule 26(a)(2) makes it clear that the
expert witness’s identity is a separate fact that must be
disclosed in addition to the report. See Fed. R. Civ. P.
26(a)(2)(B) (stating that disclosure of expert witness’s
identity “must be accompanied” by the expert report);
Musser, 356 F.3d at 756-57 (explaining the procedure
for disclosing expert witnesses’ identity).
Moreover, Rule 26(a)(2) does not allow parties to
cure deficient expert reports by supplementing them
with later deposition testimony. The purpose of
Rule 26(a)(2) is to provide notice to opposing coun-
sel—before the deposition—as to what the expert witness
will testify, see Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir.
2000); Salgado v. General Motors Corp., 150 F.3d 735, 741 n.6
(7th Cir. 1998), and this purpose would be completely
undermined if parties were allowed to cure deficient
reports with later deposition testimony. Allowing
parties to cure a deficient report with later depositions
would further undermine a primary goal of Rule 26(a)(2):
“to shorten or decrease the need for expert depositions.”
Salgado, 150 F.3d at 741 n.6. After all, the parties’ need
for expert depositions would increase if they could use
deposition testimony to provide information they
should have initially included in their Rule 26(a)(2) report.
See id. Ciomber’s assertion that Mniszewski’s deposition
testimony cured his deficient report is therefore meritless.
Equally meritless is Ciomber’s assertion that the defi-
cient report was due to his attorney’s medical emergency.
It truly is unfortunate that Mr. Szymanski suffered a
heart attack on the eve of the deadline for the disclosure
of Mniszewski’s expert report, and we are happy to see
that he appears to have made a full recovery. Nevertheless,
Mr. Szymanski’s medical emergency does not explain
12 No. 06-3807
why he waited to ask Mniszewski to compose the report
a mere six days before the deadline, a fact that helps
explain why Mniszewski’s conclusions and reasoning
were so cursory. Given that Mniszewski drafted the
report without any help or input from Mr. Szymanski, the
emergency also does not explain why the report was
deficient. The emergency likewise does not explain
why Ms. Szymanski Koroll did not disclose an amended
expert report after the district court rightly granted her
request for time to do so. Despite Ms. Szymanski Koroll’s
assurances, no amended expert report was ever dis-
closed, even though Cooperative Plus highlighted the
report’s deficiencies—three months after it was dis-
closed—in its motion to exclude Mniszewski’s testimony.
See id. (“Disclosures must not be used as a means to ex-
tend a discovery deadline.”); cf. Musser, 356 F.3d at 758-
59 (upholding exclusion of late expert-witness report where
party “never attempted to disclose any witnesses as experts
until the defendants moved for summary judgment”).
Indeed, based on the record before us, we agree with
the district court that the fact that Mniszewski’s expert
report was deficient was not harmless. Because of the
report’s deficiencies, Cooperative Plus was forced to
depose Mniszewski with little or no understanding as to
what he would testify. See Sherrod, 223 F.3d at 613 (“The
expert witness discovery rules are designed to aid the
court in its fact-finding mission by allowing both sides
to prepare their cases adequately and efficiently and to
prevent the tactic of surprise from affecting the outcome
of the case.”). Moreover, the district court was forced
to devote considerable time and resources to address
the matter of the deficient report—time and resources
that instead could have been devoted to reaching a
No. 06-3807 13
speedy resolution of Ciomber’s suit. See Salgado, 150 F.3d
at 741 n.6 (stating that Rule 26(a)(2) requires “detailed
and complete” report “to conserve resources”). We thus
cannot say that the district court abused its discretion by
imposing the “automatic and mandatory” sanction of
excluding Mniszewski’s deposition testimony. See Keach,
419 F.3d at 639.2
Nor did the district court abuse its discretion by refusing
to consider Ciomber’s Rule 56.1 response. Rule 56.1
requires a party seeking summary judgment to include
2
Cooperative Plus asserts Ciomber’s failure to point to admissi-
ble expert-witness testimony alone dooms his appeal. Specifi-
cally, Cooperative Plus contends that Ciomber can prove
causation only with expert testimony, and because Mniszew-
ski’s testimony was correctly excluded, we must uphold the
district court’s grant of summary judgment. In making its argu-
ment, Cooperative Plus relies on two cases in which Illinois
state courts concluded that an explosion does not create a
presumption of negligence. See John Morris Co. v. Southworth,
39 N.E. 1099, 1100 (Ill. 1894); Edmonds v. Heil, 77 N.E.2d 863, 870
(Ill. App. Ct. 1948). Fair enough, but those cases do not state that
the cause of an explosion must be proven by expert testimony.
Nor does Adams v. Northern Illinois Gas Co., 809 N.E.2d at 1260,
the state court decision that Cooperative Plus pointed to at oral
argument when contending that, in all cases involving an
explosion, causation must be proven by expert testimony. In
fact, causation and the manner in which it must be proven was
not even at issue in Adams; the “sole inquiry” the Adams court
undertook concerned the “existence of a legal duty.” Id. at 1257.
And because we found no other Illinois state court decision that
supports Cooperative Plus’s point, we cannot agree with the
company’s proposition that the cause of an explosion must
be proven by expert testimony in all instances.
14 No. 06-3807
with his motion “a statement of material facts as to
which the . . . party contends there is no genuine issue and
that entitle the . . . party to a judgment as a matter of
law.” Loc. R. 56.1(a)(3). The party opposing summary
judgment must then respond to the movant’s statement
of proposed material facts; that response must contain
both “a response to each numbered paragraph in the
moving party’s statement,” Loc. R. 56.1(b)(3)(B), and a
separate statement “consisting of short numbered para-
graphs[ ] of any additional facts that require the denial of
summary judgment,” Loc R. 56.1(b)(3)(C). District courts
are “ ’entitled to expect strict compliance’ ” with Rule 56.1,
Cichon v. Exelon Generation Co., L.L.C., 401 F.3d 803, 809-10
(7th Cir. 2005) (quoting Ammons v. Aramark Unif. Servs.,
Inc., 368 F.3d 809, 817 (7th Cir. 2004)), and a court does not
abuse its discretion when it opts to disregard facts pre-
sented in a manner that does follow the Rule’s instruc-
tions, see Midwest Imports, Ltd. v. Coval, 71 F.3d 1311,
1316 (7th Cir. 1995).
Here, the district court refused to consider the facts
proposed in Ciomber’s Rule 56.1 response after con-
cluding that he did not separate his proposed facts from
his responses to Cooperative Plus’s proposed material
facts. As the court explained, Ciomber’s response contained
only “lengthy recitations of additional facts in his re-
sponses to [Cooperative Plus’s] statement of material
facts.” Ciomber does not contest the court’s characteriza-
tion of his Rule 56.1 response, and our own review of his
response confirms the court’s findings. Ciomber’s response
contained several extremely long, argumentative para-
graphs, and in those paragraphs he simultaneously
denied the veracity of Cooperative Plus’s proposed mate-
rial facts and presented additional facts of his own. And
No. 06-3807 15
because Ciomber’s response did not comply with Loc. R.
56.1(b)(3)(B) and (b)(3)(C), the district court did not err
by refusing to consider the facts he proposed. See Cichon,
401 F.3d at 809-10; Midwest Imports, Ltd., 71 F.3d at 1315-16.
B. Cooperative Plus’s purported admissions in state-court
pleadings
Ciomber also makes a multi-faceted argument that the
district court overlooked Cooperative Plus’s numerous
admissions of causation in various state-court pleadings.
See Murrey v. United States, 73 F.3d 1448, 1455 (7th Cir. 1996)
(“A judicial admission trumps evidence.”). As a part of this
argument, he asserts that, under Illinois law, Cooperative
Plus admitted causation when it failed to deny his allega-
tion of causation explicitly. He points out that in paragraph
12 of his complaint he stated that the destruction of his
house and his injuries were “direct and proximate result[s]
of the breaches of the duties” Cooperative Plus owed to
him. However, Ciomber continues, Cooperative Plus
denied in its answer only that he “was injured in the
manner or to the extent claimed, and further denie[d] the
remaining allegations contained in paragraph 12.” Ciomber
thus contends that, because Cooperative Plus did not
explicitly deny causation in its answer, the company
admitted that it caused the explosion.
Ciomber’s argument is essentially a challenge to the
sufficiency of Cooperative Plus’s state-court pleadings.
Normally, we are guided by the Federal Rules of Civil
Procedure when addressing the sufficiency of pleadings,
see Fed. R. Civ. P. 1, 8(b), but because Ciomber’s com-
plaint and Cooperative Plus’s answer were filed in
Illinois state court before this action was removed, we
must apply Illinois’s standards, see Fed. R. Civ. P. 81(c)(1),
16 No. 06-3807
Romo v. Gulf Stream Coach, Inc., 250 F.3d 1119, 1122 (7th
Cir. 2001). Those standards are outlined in both Illinois’s
Civil Practice Law, 735 Ill. Comp. Stat. 5/2-101 et seq., and
the Illinois Supreme Court Rules, see Ill. Sup. Ct. R. 1 (“The
rules on proceedings in the trial court, together with the
Civil Practice Law . . . shall govern all proceedings in
the trial court . . . .”).
As Ciomber points out, the Civil Practice Law requires
a defendant’s answer to “contain an explicit admission
or denial or each allegation” presented in a complaint,
and further states that every allegation that is “not ex-
plicitly denied is admitted.” 735 Ill. Comp. Stat. 5/2-610(b);
see also Parrish v. Hackman (In re Estate of Andernovics), 759
N.E.2d 501, 504-05 (Ill. 2001). But neither the law, nor
Ciomber, explains how detailed a denial must be to qualify
as “explicit.” Lucky for us, then, that the Illinois Supreme
Court Rules shed some light on the subject: “If a pleader
can in good faith deny all the allegations in a paragraph
of the opposing party’s pleading . . . he may do so with-
out paraphrasing or separately describing each allega-
tion denied.” Ill. Sup. Ct. R. 136; see also O’Connor v. Harris
Bank Barrington, N.A. (In re Estate of Kirk), 686 N.E.2d
1246, 1251 (Ill. App. Ct. 1997); In re Estate of Kirk, 611 N.E.2d
537, 540 (Ill. App. Ct. 1993). The Supreme Court Rules
even provide an example of what is a considered a suf-
ficient denial: “Defendant admits [stating facts admitted]
and denies the remaining allegations of paragraph 5 and
each of them.” Ill. Sup. Ct. R. 136 committee cmt.
Applying the Illinois Supreme Court Rules to Coopera-
tive Plus’s answer, it is apparent that Ciomber’s contention
is unavailing. Cooperative Plus clearly abided by the
Supreme Court Rules when denying Ciomber’s “remaining
allegations contained in paragraph 12,” which included
the allegation of causation. See Ill. Sup. Ct. R. 136; Kirk,
No. 06-3807 17
611 N.E.2d at 540. In fact, the company phrased its
denial exactly like the Supreme Court Rules’ example of
an acceptable denial. See Ill. Sup. Ct. R. 136 committee cmt.
Not to be deterred, Ciomber further contends that
Cooperative Plus also affirmatively admitted causation
in its answer and other pleadings by agreeing that: (1) “on
November 18, 2001, LP-gas leaked out and into [Ciomber’s]
residence in such a volume and concentration which
did explode”; (2) Ciomber detected the scent of LP-gas up
to a year before November 18 and reported the scent
to Cooperative Plus; (3) Cooperative Plus replaced cer-
tain LP-gas accessories in Ciomber’s house in response to
his reports of LP-gas leaks; and (4) the explosion could
have been prevented by turning off the flow of LP-gas
into the home. In other words, Ciomber argues that
Cooperative Plus admitted to causing the explosion by
agreeing that it supplied him LP-gas, that it was aware
of a recurring LP-gas leak, that it addressed that leak,
and that the explosion could have been prevented.
Contrary to Ciomber’s interpretation of Cooperative
Plus’s statements, the company did not admit that it
caused the LP-gas leak and the subsequent explosion; it
merely agreed that there was a leak and an explosion. At
most, Cooperative Plus’s admissions might pertain to
whether the company had a duty to Ciomber and
whether it breached that duty. See Adams, 809 N.E.2d at
1259 (“ ’Where it appears that a gas company has knowl-
edge that gas is escaping in a building occupied by one
of its consumers it becomes the duty of the gas company
to shut off the gas supply until the necessary repairs
have been made . . . .’ ” (quoting Clare v. Bond County Gas
Co., 190 N.E. 278, 279 (Ill. 1934))). But where, as here,
the theory of liability is premised on negligence, an ad-
mission to a breach of duty has no bearing on whether
18 No. 06-3807
that breach actually caused the harm asserted. See Andersen
v. Mack Trucks, Inc., 793 N.E.2d 962, 969-70 (Ill. App. Ct.
2003) (stating that there must be “a nexus” between
breach of duty and harm to prove causation); 1 Dobbs,
supra, § 166 (“[P]laintiff must prove not merely that she
suffered harm sometime after the defendant’s negligent
act occurred but that the harm was caused in fact by
the defendant’s conduct.”); cf. Cosgrove v. Commonwealth
Edison Co., 734 N.E.2d 155, 159 (Ill. App. Ct. 2000) (“Res ipsa
loquitur does not apply if the injury can be as readily
attributed to pure accident as to the defendant’s negli-
gence.”). Cooperative Plus did not admit any causal
relationship between its alleged breach of duty to
Ciomber, the LP-gas leak, and subsequent explosion.
Thus, we cannot agree with Ciomber that the company
admitted causation in its state-court pleadings.
III. CONCLUSION
The district court did not err either by excluding
Mniszewski’s deposition testimony or by disregarding
Ciomber’s Rule 56.1 response. And Cooperative Plus did
not concede causation in its state-court pleadings. Ciomber
thus can point to no admissions or evidence estab-
lishing the element of causation of his negligence claim,
much less disputing Cooperative Plus’s evidence
showing that he caused the explosion by rupturing his
dryer’s LP-gas line. The district court accordingly did
not err in granting summary judgment for Cooperative
Plus. See Cady, 467 F.3d at 1061.
AFFIRMED.
USCA-02-C-0072—5-28-08