Ciomber, James v. Cooperative Plus Inc

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