NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 22, 2010*
Decided July 23, 2010
Before
FRANK H. EASTERBROOK, Chief Judge
RICHARD A. POSNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 09‐4031
JOSEPHINE JOYCE, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 05 C 6596
J.C. PENNEY CORPORATION, INC.
Defendant‐Appellee. Harry D. Leinenweber,
Judge.
O R D E R
Josephine Joyce sued J.C. Penney in Illinois state court for negligently injuring her in
a retail store. J.C. Penney removed the suit to federal court, see
28 U.S.C. § 1446, where the
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2)(C).
No. 09‐4031 Page 2
company won a partial summary judgment that excluded from the case most of Joyce’s
asserted injuries. To obtain review of that ruling, Joyce then voluntarily moved to dismiss
with prejudice the remainder of her case. See FED. R. CIV. P. 41(a)(2). We affirm the
judgment.
We first determine whether we have appellate jurisdiction. When a plaintiff
voluntarily forgoes with prejudice the remainder of a case to secure immediate appellate
review of a contested and otherwise interlocutory ruling, the proceedings in the district
court are finished. And here, because those proceedings are over, appellate jurisdiction is
secure. See McMillian v. Sheraton Chi. Hotel & Towers,
567 F.3d 839, 843 (7th Cir. 2009); Ash v.
Wallenmeyer,
879 F.2d 272, 273‐74 (7th Cir. 1989). We turn, then, to the merits.
Joyce claims that in November 2003 an employee at one of J.C. Penney’s stores
negligently rammed a rolling display rack into her ankle, causing her to twist and fall.
Joyce continued shopping, but sought treatment the next day for pain in her left leg and
back. Doctors observed tenderness in her lower back and a possible sprain to her foot or
ankle, but concluded that the pain in her leg was “not anatomically related” to her foot or
ankle injury. By the time she sued, Joyce attributed several other medical conditions to the
collision. These included a cyst behind her left knee, a viral infection in her left eye, and the
aggravation of many preexisting conditions, such as: an injured sciatic nerve and other
lower‐back and leg injuries (from a car accident and another fall years earlier), bulging discs
in her spine, a degenerative spinal disease, arthritis, anxiety, and possible depression (all
diagnosed before the store accident). For her alleged injuries, she sought three million
dollars in damages. No expert was willing to testify to a reasonable degree of medical
certainty that the collision at the store had caused or exacerbated any of Joyce’s injuries or
conditions, except for some pain in her back and left ankle.
Both parties moved for summary judgment. In granting J.C. Penney’s motion in
part, the district court noted that Joyce could point to no medical evidence linking her cyst,
viral infection, depression, or arthritis to the collision at the store. As for Joyce’s other back,
neck, and leg conditions (such as her bulging discs, spinal disease, and injured sciatic
nerve), the district court observed that no medical expert was willing to attest to more than
a mere possibility that these were caused or aggravated by the clothes‐rack crash. Thus, the
district court ruled, no reasonable jury could find that she had established causation under
Illinois law, which requires “reasonable certainty,”and not just a chance, that J.C. Penney
caused these injuries. Ciomber v. Coop. Plus, Inc.,
527 F.3d 635, 640 n.1 (7th Cir. 2008); First
Springfield Bank & Trust v. Galman,
720 N.E.2d 1068, 1072 (Ill. 1999). Only the evidence of
the back and ankle pain that followed the store accident, the district court concluded,
required a trial.
No. 09‐4031 Page 3
On appeal Joyce argues that under Illinois law her lay opinion and her medical
experts’ opinions about the mere possibility of causation were enough to defeat summary
judgment. Under Erie R.R. v. Tompkins,
304 U.S. 64 (1938), federal courts in diversity cases
like this one apply state substantive law on the requirement of causation, but follow the
federal law of evidence, Schindler v. Seiler,
474 F.3d 1008, 1010 (7th Cir. 2007). Here, Joyce’s
evidence would not permit a reasonable jury to conclude that the collision in the store
caused or aggravated any of the maladies that the district court said were unrelated to the
collision. First, Joyce did not produce any competent evidence that the collision caused her
cyst, viral infection, depression, or arthritis. Her lay views about the origins of these
medically complex problems do not suffice. See United States v. York,
572 F.3d 415, 420 (7th
Cir. 2009) (“Opinions or inferences based on ‘scientific, technical, or other specialized
knowledge within the scope of Rule 702ʹ are not admissible as lay testimony under Fed. R.
Evid. 701.”). Second, although some of Joyce’s doctors were unwilling to rule out the
possibility that the collision worsened her earlier back, neck, and leg injuries, speculation
about causation will not defeat summary judgment. See Wintz v. Northrop Corp.,
110 F.3d
508, 515 (7th Cir. 1997) (Illinois law); Zimmer v. Celotex Corp.,
549 N.E.2d 881, 883 (Ill. App.
Ct. 1989); Lindenmier v. City of Rockford,
508 N.E.2d 1201, 1207 (Ill. App. Ct. 1987). The only
competent evidence that Joyce presented was that the collision created additional back and
ankle pain, but Joyce chose to abandon a trial to recover damages for only that pain.
Accordingly, we AFFIRM the judgment of the district court.
