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 
2 No. 13-1786

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.
No. 13-1786 3

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-
4 No. 13-1786

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
No. 13-1786 5

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 
6 No. 13-1786

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). 
No. 13-1786 7

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 
8 No. 13-1786

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 
No. 13-1786 9

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.