### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 13

- 1786

S TEVEN K ALLAL , Plaintiff

- Appellant
,

v.

CIBA V ISION C ORPORATION , I NC

. , 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

.

____________________
A RGUED O CTOBER 1, 2014

— D ECIDED F EBRUARY 24, 2015

____________________

Before W OOD , Chief Judge
, and R IPPLE and T INDER , Circuit Judges

. W OOD , C hief 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. 2 4, 2015). People like them for a number of reasons: vanity, effectiv eness of vision correction, convenience, to name a few. But contacts come at a price. Serious eye infections that can lead2 No. 13

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to blindn ess 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 Corpor ation. Nearly t wo years af ter 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 sum mary 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, t he district court gran ted judgment for CIBA. We affirm.

I

Kallal began his use of CIBA’s O2 Optix lenses in D ecember 2006 when he received a sample pack from Rose O ptical, 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 th e 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 the n. Instead, he limit ed 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.No. 13

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In the meantime, CIBA had d iscovered that a large nu mber of the contact lenses it manufactured had poor ion pe rmeability 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 i ncluded some O2 Optix lenses ordered by R ose Optical

. On May 1 , 2009, Kallal sued CIBA in the Circuit Court of Cook County. Alleging that the O2 lenses caused his pain
, Kallal assert ed that CIBA was liable for negligence, strict product liability, and br each of implied warranty. CIBA timely removed the case to federal court on June 3, 2009 , r elying 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 D elaware 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 groun d that Kallal n ever 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 2 9 , 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 ma terial fact;

s econd, he urges that the district court abused its discretion by denying his request for additional discovery und er Rule 56(d); and f inally, he complains that the court should not have relied on p reemption as an independent basis for dec i-4 No. 13

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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 rec ord.” 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 t hat none of the lenses shipped to Rose Opt ical 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 co ntrary. He believes that he can meet this burden with circu mstantial evidence. Kallal’s strongest argument is that CIBA’s voluntary recall

was so huge that the compan y could not possibly have known which lenses were defective. More than that, Kallal points out that some of the lenses he wore were manufa ctured in Batam, Indonesia
, in the plant that had also ma n ufactured the recalled lenses. From that, he draws the infe rence 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 theNo. 13

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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 demo nstrated 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; e rgo , Kallal’s lenses were defective. To defeat summary judgment, however, he needed more. Much more, in fact. Kallal admitted to hav ing reacted poorly t o other companie s’ contact lenses. No design defect theory would establish CIBA’s liability if Ka llal is simply allergic to all contacts. But Kallal never pointed to evidence su pporting 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 “su spicious of records showing that no recalled lenses in Kallal’s prescription were sh ipped 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 wi tness’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 hypothe tical 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 lense s . He did not offer an opinion on the question whether the lenses that Kallal wore actually caused his injuries. Len Czuba, an eng ineer Kallal put forth as a medical device expert, testified that6 No. 13

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low ion permeability could cause injuries si milar to Kallal’s.
T hat testimony , however, sheds no light on the question whether Kallal’s lenses were defective. We accept that K allal 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 defe ctive. Kallal offered no factual support that would permit a

r easonable trier of fact to conclude his injuries stemmed from defective CIB A 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 i n 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, b ecause the district judge abused her d iscretion when she d enied his request for more discovery. Kallal had hoped to d epose 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 lense s. Kallal failed , however, to file a Rule 56(d) affidavit explai ning 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 di strict court's decision” to deny additional discovery).No. 13

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Kallal ’s only response to this well

- established rule is an argument that the 2010 Am endments 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), wh ich sets out the procedure for describing the facts, no longer requires a formal affidavit. See F ED

. R. C IV . P. 56 ( Cmte. Note to 2010 Amdt.). Immediately after that statement, the commentary confirms that, as 28 U.S.C. § 1746 permits, “a written u nsworn d eclaration, certificate, verification, or statement su bscribed 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 sa tisfy it. A suppor ting document would in any event not have guaranteed more discovery. “T he decision to cut off disco very is committed to the management skills of the district court.” Stevo v. Frasor , 662 F.3d 880, 886 (7th Cir. 2011) (qu otation omitted). The district judge did not abuse her discr etion 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

w ere recalled from Rose Optical

. The district judge was well within the bounds of reason when she decided that Mr. Go ethe’s deposition would suffice.

Kallal also complains about the district court’s decision s to suspend discovery until October 2011 and the n to set a six

- month time limit on discovery, “ despite the fact that this was a complex product liability case.” Perhaps he means to8 No. 13

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say that the court took an iron

- fisted approach. But the re cord reflects a different reality: the district judge gave Kallal multiple opportunities and extensions in his filings and di scovery requests. Although the court denied his last request for more discovery, that denial c ame at the end of a long line of requests the court had granted

. Nothing in the court’s ru lings 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 Cosme tic Act

. CIBA’s O2 c ontact lenses are Class III d evices within the meaning of that statute. Under the MDA, federal law preempts state law tort claims with respect to Class III med ical devices. Covered devices must be approved by the F ood and D rug A dministration (FDA) pursuant to the agency’s
pre

- market approval process. Preemption is not absolute, however; the Supreme Court has interpreted the statute to al low any state tort claim that is “parallel” to a federal one ( i.e

. , if it i s a “ remedy for claims premised on a violation of FDA regulations ”)

. Riegel v. Medtronic, Inc. , 552 U.S. 312, 330 (2008). Kallal say s that his suit fits under the Riegel exception b ecause 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 co ntrary.

We do n ot need to resolve this issue, for the simple re ason that the district court did not rely on preemption as a ground for its d ecision. Its opinion leaves no doubt that theNo. 13

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ruling was based on the facts we already have discussed: Kallal never used the recall ed 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 manufa ctured 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 di strict court is A FFIRMED

.